A common but problematic clause in a Separation Agreement in a divorce action is that the spouse may remain in the marital residence until the youngest child turns 18 and then the spouse must sell the home. Only when the house is sold can the other spouse, now the ex-spouse, receive the equity from the home.
What has been occurring quite frequently is when the threshold date is reached, the in-resident ex-spouse refuses to sell the home or take any steps necessary to sell the home, such as: 1) sign a Realtor’s listing agreement; 2) show the home in a presentable condition; 3) agree to a sales price; 4) sign a contract of sale; or 5) sign a deed.
To combat this issue it is necessary to return to Supreme Court and seek judicial intervention. The Judge in the post Judgment of Divorce action has the power and authority to compel the non-compliant ex-spouse to sell the home by finding that ex-spouse in Contempt of Court. The Judge may order the non-compliant ex-spouse to pay a fine as well as the counsel fees of the other ex-spouse for the necessity of filing the Order to Show Cause for such relief. The Court also has the inherent power to incarcerate the non-compliant ex-spouse.
In a number of these matters when I have represented the ex-spouse attempting to compel the in-resident ex-spouse to sell the home, I have sought, and obtained, an Order of Receivership. A Receivership allows the ex-spouse to “step into the shoes” of the in-resident ex-spouse in signing the listing agreement, contract of sale and deed on behalf of the non-compliant ex-spouse, even against the objections of said individual.
As such, even if you have an artfully drafted Separation Agreement, if one party refuses to comply with the terms of the Agreement, all is not at an impasse. There are a number of remedies available to induce the sale of the home.