Tuesday, February 21, 2012

Trends in Family Law: Bad Faith Tactics to Delay the Sale of the Marital Home

A recent trend I have been seeing in family law cases is where one party is purposefully delaying the sale of the former marital home to the detriment of the other. I am involved in several cases currently where this is occurring.

Oftentimes, in a settlement agreement, the parties will agree that one party will stay in the marital home and will have the option to refinance the mortgage or buy out the other party's interest in the home within a set period of time. These agreements typically provide that if the party who remains in the house does not refinance the mortgage and/or buy-out the other party within a set period of time, the house will then be sold with the net proceeds divided in some manner between the parties.

I am currently involved in several cases where the party who has remained in the house has not refinanced the mortgage or bought out their ex-spouse, and then has failed to take the steps necessary to sell the house in a timely manner as contemplated by the party's separation agreement.

Tactics to delay the sale of the house include prolonging disputes over which agent will list the house, only agreeing to list the house at a price significantly above its fair market value, refusing to market the house, keeping the house dirty and cluttered during open houses and prospective buyer showings and removing items that typically convey with the property.

Although the Court has the authority to appoint a trustee to sell a house when a dispute over its sale arises, it can take months to get a court hearing to have the trustee appointed, and trustee (and lawyer) fees can be substantial.

With house delaying tactics trending in this area, it is important for parties who enter into a separation agreement to include detailed provisions regarding how and by whom the house will be sold in their agreements. Separation agreements should include, among other things, provisions on who will sell the house, at what price the house will be sold, how the house will be marketed, what steps will be taken if the house does not sell within a set period of time, what conveys with the house and the responsibilities of each party. Parties may have reasonable disagreements regarding the sale of their home, but steps should be taken to minimize these disagreements before they arise.

Addressing these issues in the separation agreement will avoid problems down the road and help ensure that no one has any wiggle room to act in bad faith or hinder the sale of real estate.

For help with your divorce, or the preparation of a separation agreement, call my office today for a free initial consultation. 301-444-4660.

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