A guide for spouses
A practical guide for spouses selling a home during a New York divorce
This is a plain-language overview of the real estate steps that often come up when a Long Island or Hamptons home is sold during a separation or divorce. It is not legal or tax advice. Use it to prepare questions for your attorney, and to decide whether a conversation about value or a listing plan would help.
Thomas J. Morganelli, Licensed Real Estate Salesperson, Long Island Home Properties, LLC, 310 Main Street, Holbrook, NY 11741. Office: 631-676-4663. Cell: 212.470.8247.
Get legal direction before you list
A sale can be straightforward when both of you agree, the authority to sell is clear, and the attorneys are in the loop. It stalls when those pieces are missing. I can prepare a pricing opinion and explain the listing process at any point. I should not list the home until the authority to sell is in place.
Questions that are worth taking to your attorney, not to me as a final answer, include:
- May we list now, or should we wait for a written agreement or a court order?
- Who must sign the listing agreement, the contract of sale, and the closing documents?
- How should offers be accepted if the two of us disagree on price?
- How will mortgage payments, taxes, insurance, and repairs be handled until closing?
- How should net proceeds be divided, or held in escrow, and who gives the closing attorney those instructions?
- Who may stay in the home, and until when, including after an offer is accepted?
- Is a buyout or a refinance being considered instead of a sale?
If you already have a settlement, stipulation, or court order that mentions the house, share the real-estate parts with me (as your attorney permits) so the listing can follow them.
Who can agree to a sale in New York
This section is general information about New York. Your attorney should apply it to your facts.
Once a divorce case is filed, automatic orders generally prohibit either spouse from selling or transferring real estate, including a home held in one name or in both, without the other spouse’s written consent or a court order. The practical effect is simple: do not list, refinance, or transfer on your own after a filing.
Even when you both want to sell, both of you often must sign the listing and the contract, unless a court order or a power of attorney your attorney has approved says otherwise. Married couples in New York often own a home as tenants by the entirety, which is one reason a one-signature sale is usually the exception, not the rule.
If you cannot agree, your attorneys can talk with you about asking the court for direction. In some cases a court may order a sale, sometimes with a referee appointed to help carry it out. I do not file those applications, and I will not pressure you to skip legal advice in order to go on the market faster.
Decisions that are easier to make before the sign goes up
You do not need to agree on every detail of the divorce in order to sell a house, but you do need a workable plan for the sale itself. Before we launch, I will ask you to be clear (and, where it matters, to put it in writing with your attorneys) about:
- The asking price, and how a counteroffer will be decided.
- What preparation will be done, who will pay for it, and what will be left as-is.
- When photos, showings, and inspections can happen, and how keys or lockboxes will work if one of you no longer lives there.
- Who receives emails and texts about the listing, and whether attorneys are copied on everything.
- What happens if an offer comes in while one of you is traveling or hard to reach.
A written comparative market analysis can give both of you the same starting point. It is my opinion of how the home is most reasonably priced, not a guarantee of what a buyer will pay, and not an appraisal.
Showings, privacy, and daily life
Many homes stay occupied during a listing. If that is your situation, we can plan showings with as much notice and predictability as the market will allow, and we can talk through how to present the rooms that buyers will see.
If children live in the home, the goal is a calm, respectful process (for example, reasonable showing windows and clear expectations about who will be present), not a public discussion of your family. I do not use a sale to comment on where a family “should” live.
If the two of you are not comfortable being present at the same time, we can usually work around that. You should not feel that a showing is a confrontation.
Proceeds, housing, and timing
Net proceeds (what remains after mortgages, agreed costs, and closing expenses) are distributed as your agreement or a court order directs. It is common for funds to be held in an attorney escrow account until that direction is clear. I do not split the proceeds myself.
If one of you needs to buy another home, the timing of this closing and that purchase has to be planned together. I can walk you through the real estate sequence. Financing and legal conditions are for your lender and attorneys.
Tax questions also belong to a professional. Federal rules on excluding gain from the sale of a main home have conditions, and selling before or after a divorce, or changing how you file, can affect the result. I will not tell you that a particular exclusion “will apply.” Ask a tax professional before you choose timing for tax reasons. The IRS explains the general rules in Publication 523, Selling Your Home.
Buyouts, waiting, and optional cash-style offers
A traditional listing is the usual path I discuss first. It is not the only option your attorneys may consider:
A buyout
One of you keeps the home and refinances or otherwise buys out the other.
Waiting
Then selling after a judgment or after a date you both agree on.
Hearing cash-style offers
If you want to compare that path with a listed sale, I can explain how NAF Cash works on the buyer side. I do not buy your house, and neither does Long Island Home Properties or NAF. You are not required to consider this in order to work with me.
If the home may be worth less than is owed
Talk with your attorney and your lender before you sign a listing or accept an offer. A short sale, if it is even possible, needs the lender’s approval.
Questions from the guide
What should we try to agree on before we list?
At a minimum: authority to sell, who signs, the asking price and how offers will be decided, access for showings, who pays carrying costs until closing, and how proceeds will be held or divided. Your attorneys should help you put the important points in writing.
Can one of us stay in the house until it sells?
Often that is possible, but occupancy, showing access, and a move-out date should be spelled out. I can help plan the practical side. The legal right to stay is a question for your attorney.
What if we cannot agree on a list price?
I will give you one written pricing opinion, based on the market, and we can talk it through. If you still disagree, that is a matter for your attorneys or, if needed, the court. I will not invent a price to break a deadlock.
Will you meet with us separately?
Yes, if that is more comfortable and your attorneys do not require a different arrangement. When both of you are in the process, I still send both of you, or both attorneys, the same written information.
Should we sell before or after the divorce is final?
That depends on your case, your automatic orders or agreements, and sometimes on tax or housing plans. I can discuss market timing in general. The decision belongs with you and your attorney, and with a tax professional if taxes are part of it.
Do you work in the Hamptons as well as the rest of Long Island?
Yes. I work with homeowners on Long Island and in the Hamptons, including Southampton, East Hampton, Water Mill, Bridgehampton, and Sag Harbor.
If a pricing opinion would help you and your counsel
Request a confidential pricing opinion, write to me on the contact page, or call or text Cell: 212.470.8247. You may also return to the main divorce-sale page.
I am a Licensed Real Estate Salesperson, not an attorney. Nothing on this page is legal advice. Any legal questions, including divorce, property division, title, contracts, or taxes, should be reviewed by a New York attorney.
Thomas J. Morganelli is a Licensed Real Estate Salesperson, not an attorney, tax professional, or financial advisor. This guide is general information about the real estate process. It is not legal, tax, or financial advice and is not a substitute for counsel on your case. Laws and court practices can change. Please consult your own attorney, and a tax professional where tax questions arise. Equal housing opportunity. See the Fair Housing Statement and the Privacy Policy.