Q: If we decide to sell the house as part of the separation agreement, do we need to wait for Divorce or can start now?
If we think the right thing to do is sell the house and divide the sale money, can we put up the house on sale after signing the separation agreement? However, if we decide to do one spouse buyout, does the price of buyout will be determined on the day of divorce?
A: With the cooperation of his or her spouse, a married person can sell his or her house whenever he or she chooses to do so. If the sale is part of the dissolution of the marriage, it would usually be to the advantage of that spouse to have a comprehensive written separation agreement addressing all the consequences of the marriage, including the sale of the marital residence. If the parties are unable to reach an agreement, a judge can order the sale or transfer of jointly titled marital property, or allow one spouse to buy out the other by a certain date.
Most spouses hold title to their real property as tenants by the entirety with the common-law right of survivorship. This tenancy protects the property from creditors of either spouse, but not a joint creditor or the IRS. Upon divorce, the tenancy converts to a tenancy in common, and is vulnerable to the creditors of each ex-spouse individually. For this reason, it is usually advantageous to sell real property prior to divorce if there are any potential judgment liens or other potential liens involved.
Michael Christopher Miller agrees with this answer
A: If selling the house is provided in the agreement, then you have to follow the agreement/contract.
Parties may agree to vary their agreements, however a written modification is recommended.
If the buyout price is not agreed, or provided for in the agreement, and a judge has to decide then the judge "shall determine the value of any such property as of the date of the evidentiary hearing on the evaluation issue." Va. Code 20-107.3(A). That statute does provide for an alternate valuation date under certain circumstances.
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