As long as your house is legally considered common marital property, your husband cannot sell the house during divorce without your permission or your being in agreement with the terms of the sale.
Understanding the following possible situations will help you get a better insight into this topic:
- The house is common marital property and the deed is in your and your husband’s name.
- The house is common marital property but the deed is in your husband’s name.
- The house was your husband’s separate property before marriage, but he commingled it with the common marital property.
- The house is currently your husband’s separate property as he hasn’t yet commingled it with the common marital property
Situation 1: The House is Common Marital Property and You are a Co-owner
Common marital property represents one or more assets acquired by the spouses during the marriage – that is usually from the day of the marriage until the day of separation. Both spouses are entitled to a share in such property in the event of divorce.
If your name is listed as a co-owner on the deed then, in any case, your husband cannot sell the house without your signature. If he tries to sell it during or before the divorce process by any means, and without obtaining your consent, then he is committing fraud.
Situation 2: The House is Common Marital Property, but the Deed is in Your Husband’s Name
If the house was acquired during the marriage then it becomes common marital property even though the deed is in your husband’s name, and you are entitled to a share in the house in the event of divorce.
Your husband cannot sell the property without your consent in this situation as well.
Sometimes, the husband may sell the house, deposit the funds in his bank account, and then take you by surprise by filing for divorce. This act is likely to be considered a deception by the courts and they will then deal with it accordingly. If this happens, you would still be entitled to a share of the funds he received from the sale.
If you have gotten wind that your husband is trying to dispose of common marital property (house or any other asset) without getting your consent, you should ask your divorce lawyer to file for restraining orders or for a lis pendens.
Situation 3: The House was Separate Property but Your Husband Commingled it with Common Marital Property
Separate property is a property owned by either spouse before marriage, which remains in the original name throughout the marriage – or, property that was gifted to or inherited by either spouse during the marriage and was not mingled with the common marital property. If your husband owned a house that was his separate property before marriage but he commingled it with the common marital property during the marriage, then you are entitled to a share of the property and your husband cannot dispose of it without obtaining your consent.
Situation 4: Your Husband Hasn’t Commingled the House with Common Marital Property, and it Remains His Separate Property
If the house remains your husband’s separate property, then he can sell it without obtaining your consent.
- States either follow the community property distribution law or the equitable property distribution law. Usually, common marital assets are split 50/50 in all states.
- Any attempt by your husband to defraud you during divorce can cause additional legal headaches for him. If you provide evidence of his actions to the family courts, the judge may award you higher alimony, a higher share in the marital property.