Frequently during a matrimonial litigation, there is one spouse who wants the marital home sold immediately (e.g., the husband who moved out of the home) and one spouse who wants to wait to sell the home (e.g., the wife with the children). Can the husband force the sale of the home over the wife’s objection? The answer, as you might expect, is: sometimes. But those “sometimes” have more to do with the financial condition of the family than of the individual preference of the one party who wants to sell.
Generally, it is true that a Court will not order a final distribution or sale of an asset until time of judgment. But if it is clear to the Court that this house is “underwater” and that this family does not have the financial means to maintain the house and pay the mortgage, a Court will often direct that the house be sold. The thought process is that the parties’ assets should be preserved to the extent possible. If foreclosure proceedings have already commenced, the likelihood of a Court-ordered sale become much higher than if there are no foreclosure proceedings. In fact, in these economic times, the short-sale of a home may be a prudent business decision that may help salvage limited marital assets.