What Happens When One Spouse Won't Sell the House in New Jersey?

If one spouse won't agree to sell the marital home in New Jersey, the other usually can't sell it alone, but the refusal doesn't stop the case. The dispute moves through New Jersey's settlement steps, like the Early Settlement Panel and economic mediation, and if there's still no agreement, a judge decides how the property is divided, which can include ordering a sale.

I'm Dennis Mark Interdonato with The Dennis Mark Group. A judge once appointed me to sell a marital home in Monmouth County where one owner worked to stall the sale, and it still closed within five months of my appointment. Here's what the process looks like when one of you says no.

Why can't one spouse sell the house without the other?

If you're both on the deed, a buyer needs both signatures. Even if only one of you is, New Jersey gives a married spouse a right of joint possession in the home you live in together as your main residence. A buyer takes the home subject to that right unless it's been released or ended, for example by the consent of both spouses, a divorce judgment or another court order (N.J.S.A. 3B:28-3). So a sale of the marital home needs both of you, or a court order, behind it.

What's usually behind a refusal to sell?

Before anything else, find out what the no is really about. It might be:

• A belief that the house is worth more than the number on the table
• Wanting to keep the house without knowing whether a refinance works
• Not knowing where they'll live next
• The timing, like a sale landing in the middle of something else
• Using the house as a bargaining chip in the rest of the case

Most of those have a numbers answer. A neutral value both of you see settles the first; read how the marital home is valued in a divorce. A conversation with a lender settles the second. The rest belong with your attorneys and mediator.

What can you do before it goes to a judge?

• Put one number in front of both of you. Start with a home value request. A value only one side trusts settles nothing.
• Compare the options side by side. A sale now, one spouse buying out the other, or a sale later under a written agreement. Read who gets the house in a New Jersey divorce for how those outcomes are decided.
• Use mediation. Mediators on New Jersey's approved roster have completed 40 hours of mediation training, and they don't represent either spouse (NJ Courts).
• Consider arbitration. A private arbitrator decides the issue, and both of you agree in advance to follow the decision and cover the fees (NJ Courts).

What does the New Jersey court process look like?

In a contested divorce, the case is first reviewed by an Early Settlement Panel of two experienced divorce attorneys, who recommend a settlement. If either of you rejects it and money issues remain, the court may order economic mediation. The first two hours, including the mediator's preparation and the first session, are free; after that the two of you pay, and if mediation continues, the court decides each person's share of the fee (NJ Courts).

If there's still no agreement, a judge decides the equitable distribution of property acquired during the marriage (N.J.S.A. 2A:34-23), weighing the factors in N.J.S.A. 2A:34-23.1. In Monmouth County, that's the Family Part at the Monmouth County Courthouse in Freehold. In Ocean County, it's the Family Division at the Ocean County Justice Complex, 120 Hooper Avenue, Toms River (NJ Courts directory).

Can a judge order the house sold before the divorce is final?

Yes, when the circumstances justify it. In Randazzo v. Randazzo, decided in 2005, the New Jersey Supreme Court held that a trial court has the equitable power to order a sale of marital property before a final judgment of divorce, and said that in many cases the proceeds should be held in escrow until final distribution (opinion text). Whether your situation fits is a question for your attorney. For what happens once a sale is ordered, read court-ordered home sales in New Jersey divorces.

What if a spouse stalls after the sale is agreed or ordered?

That's what my Monmouth County case looked like. The judge appointed me to list and sell the home. The two owners weren't allowed to speak to each other, and one of them worked to stall the sale all the way to the township's final inspection. I kept the process neutral and kept the court and both attorneys informed at every step, and the home closed within five months of my appointment.

Stalling rarely looks like a flat no. It looks like this:

• Not signing: the listing, a price change, the contract, an inspection response or the closing papers
• Canceled showings, or an inspector or appraiser who can't get in
• Fighting the price with no numbers behind it
• Messages that go unanswered until a deadline passes
• Letting the house slide while it's on the market

Arguing with a spouse who's stalling almost never works, and side conversations make it worse. I don't try to talk anyone into anything, because that isn't neutral, and I don't break ties. Here's what I do instead:

1. Write it down. The date, what was asked and what happened. Facts, not opinions.
2. Send it to both owners. The same update, at the same time.
3. Give it to the attorneys. They decide what to do with it.
4. Have the record ready for the court. If nothing changes, your attorneys can take it back to the judge.

A pause isn't a failure. A sale that waits while the attorneys sort something out is still a sale, and buyers stay with it when they can see it's organized, with dates tracked and every answer in writing. I tell people what they need to hear, not what they want to hear, and in a stalled sale that means saying it in writing, to both sides, every time.

Who pays the mortgage while you're stuck?

Who pays what while the case is open is for your attorneys or the court to set. The lender doesn't wait for the divorce, though. A decree can assign the debt to one spouse, and the lender can still collect from anyone named as a borrower on the loan (CFPB). If your name is on the loan, a missed payment is your problem too.

Frequently Asked Questions

Can I force the sale of the marital home in New Jersey?

Not on your own. A judge can order a sale, either as part of the final division of property or, when the circumstances justify it, before the divorce is final. Your attorney tells you whether your situation fits.

Can my spouse sell the house without me?

For the home you live in together as your main residence, a buyer would take it subject to your right of joint possession unless that right was released or ended, for example by your consent, a divorce judgment or a court order (N.J.S.A. 3B:28-3). If you're worried, talk to your attorney before anything is signed.

What if my spouse won't sign the listing or the contract?

That step waits. I record the request and the refusal, send it to both of you and your attorneys, and they decide what to ask for next, which can include going back to the court. Depending on how it's written, a court order can address who signs and set deadlines. Your attorney tells you what yours allows.

What does economic mediation cost in New Jersey?

The first two hours are free, covering the mediator's preparation and the first session. After that the two of you pay, and if it continues, the court decides each person's share (NJ Courts).

Do I have to keep paying the mortgage if my spouse lives in the house?

That's for your attorneys or the court to decide, but the lender can still collect from anyone named as a borrower on the loan, whatever the decree says (CFPB).

This is general information, not legal, tax or lending advice. Your attorney, mediator, tax professional or lender has the final word on your own situation.

About the author

Dennis Mark Interdonato is a REALTOR® and Master CDRE® who leads The Dennis Mark Group at Keller Williams Realty Ocean Living in Point Pleasant, NJ, helping buyers and sellers throughout New Jersey make their next move, with Monmouth and Ocean County as home base. He's a former New Jersey home builder and residential remodeler. See how he handles home sales during a divorce.

Keep reading

• The Divorce Guide
• Get one neutral value both of you can see
• Court-ordered home sales in New Jersey divorces
• Have a question this didn't answer? Send it to Dennis Mark.