Can A Court Force The Sale Of The Martial Residence Prior To Divorce?


A common question my clients ask me is can a court force the sale of the marital residence prior to divorce?  Dividing real property in a divorce can be complicated, especially when it is not clear if the property is part of your marital property. In this article, learn about how real property is treated during a divorce and get information on what to do after your divorce is complete.

What Is Real Property?

“Real property” is land and anything that is attached to the land. This includes fixtures (improvements), houses, and buildings.  Mobile homes are not real property because they are not attached to the land. However, the land the mobile home is on would be considered real property.

What Is Separate Property Versus Community Property?

Before you divide real property in your divorce, you need to determine if the real property is separate or community property.

  • Separate property is any property that you or your spouse owned before the marriage or that you received during the marriage as a gift or inheritance. Separate property can also include property purchased using funds that meet the definition of separate property. For instance, if you received funds as a gift and used those funds to purchase a house, that house would still be separate property.
  • Community property is all property bought during the marriage with income received during the marriage.

Courts Authority On Martial Residence

Absent an agreement between the parties, the court lacks the authority to direct the sale of the marital residence owned by the parties as tenants by the entirety before altering the parties’ marital relationship. Diamond v. Diamond 105 A.D.3d 891, 963 N.Y.S.2d 368 (Second Dept. 2013). See also Adamo v. Adamo, 18 A.D.3d 407, 408.

However, once the parties to the matrimonial action consent to the sale of the marital residence owned by the parties as tenants in the entirety, such consent cannot be unilaterally withdrawn. See copy of Janke v. Janke, 2005 Misc. LEXIS 3305 (Sup Ct, Nassau County).

To put this issue of can a court force the sale of the marital residence prior to divorce into perspective.  When you commence a divorce action you can have your attorney file on your behalf a pendente lite motion seeking temporary relief with respect to such issues as custody, child support, maintenance, exclusive use and occupancy of the marital residence, etc. However, until the marriage is dissolved by the court via the court signing a Judgment of Divorce, the court cannot force the sale of the marital residence where the property is held by the parties as tenants by the entirety (jointly held) unless the parties consent.

This is not to say that the court can’t order one of the parties to pay the mortgage and property taxes and possibly even all of the carrying charges on the marital residence during the pendency of the action. The court can do that pendente lite (pending the litigation). It is just that the court cannot force its sale until the marriage is dissolved either by an agreement or decision and order after trial.

One of the most significant decisions in a New York divorce is what happens with the couple’s marital home. In most cases, a couple’s most valuable asset is their home.  Aside from the financial value, there are often other considerations such as the emotional value a house has to one or both parties. In most cases, the couple can work out which party stays in the marital home and what offsets are appropriate. However, if that is the parties are not able to agree, then a judge will determine what happens with the marital home.

What If Spouses Can’t Agree On Who Keeps The Home?

Sometimes, the simplest way to solve a disagreement over the family home is to sell the property and divide the proceeds between the spouses.

However, if the spouses cannot agree on who will receive sole ownership of the home, a judge will have to decide on which spouse keeps the home. There can be a number of factors a judge might consider when making this decision:

  • Is the home built on land that was in one spouse’s family and still with family nearby?
  • Which spouse can best afford the home?
  • Does one spouse have a greater need for the home based on the custodial schedule for their children?
  • Did one spouse own the home prior to getting married and later transfer the home into the parties’ joint names during the marriage?
  • Though not the subject of this post, it is important to note that a judge does not have the authority to require the spouse who gets the house to refinance the mortgage into his or her sole name.

In New York divorce cases, one of the judge’s most important roles is to preserve the value of the couple’s assets. Indeed, under New York law, a judge is given broad discretion to act regarding the determination of title to the property.  It is important to note that if retaining ownership of the marital home will result in the dissipation of the couple’s assets, the court can order the home to be sold. An example is if the parties are not able to afford the mortgage payment for the marital home because the primary breadwinner in the family lost their job.  The court may intervene and order that the home be sold rather than go through the foreclosure process. This is even the case if one of the spouses objects to the sale of the home.

Do You Need Legal Representation?

If you need legal representation concerning a divorce or Family Court matter, I invite you to contact my office to set up a free consultation by calling 631-588-3155. I have been handling divorce and Family Court matters for over 33 years here on Long Island and wrote a book about divorce and family law titled Divorce: A Practical Guide which you can purchase on my website,, or


About the Author

Phillip Jusino