Frequently, couples going through divorce cannot afford to stay in the family home. There are usually no easy answers when one spouse wants to stay in the house and the other wants to list. The question becomes: can one spouse be ordered by the court to sell the house?
In short, it depends on the totality of the circumstances. Are the monthly payments affordable to the party wishing to stay? This question is usually answered when the court awards property and/or child support and/or maintenance, if any.
If the party wishing to stay in the house can afford to stay in the house based on his or her income and assets, even if it means being “house poor”, he or she can elect to do so and the court usually cannot compel the party to sell the house. On the other hand, if the court’s allocation of income and assets is such that it wouldn’t be possible to stay in the house, the parties may simply have no choice. The court is not directly ordering the sale of the house but rather the allocation of income of assets which thereafter dictates the party’s ability to keep the house.
In cases where a home has been foreclosed upon or the parties have previously signed a listing agreement and one party is not cooperating at closing and it would be of great detriment to the parties if the home were not sold, judges in Cook County have been known to compel the parties to sign the documents on an emergency basis or the judge may sign them him or herself if the party cannot be located.
It’s also possible for the Court to award short-term power of attorney to an agent to execute documents on behalf of the party who is not cooperating. Where the matter is urgent and the parties risk losing significant money in a sale, the court will likely see that the sale is completed.
In less pressing situations, however, parties generally can settle the matter based on the overall income and property involved in the matter.