My Husband was Ordered to Sell the House in the Divorce and Isn’t Doing it, What Can I Do?
There are various legal remedies which may be available to you when faced with an ex-spouse who is not cooperating with your divorce orders and division of marital property. The first thing an attorney will need to do will be to review the terms of your orders regarding the home. Hopefully they were entered with a degree of specificity and with particular remedies already built in the event that your husband failed to sell the house, or perhaps missed mortgage payments. Presuming the orders contain no such provisions, the first remedy that comes to mind would be the filing of a remedial contempt motion pursuant to Colorado Rules of Civil Procedure Rule 107.
With the filing and service of the contempt motion, the burden of proof will be upon you to show that your husband failed to comply with the court orders regarding the sale of the home and has the ability to comply with those orders. When seeking a finding of contempt, you can seek remedial orders, which could include additional orders designed to ensure that sale of the home occurs. Specifically, you could seek remedial sanctions requiring him to vacate the home and give you full authority to deal with the sale. If there was equity to be gained from the sale, you might also seek an order regarding statutory interest on your share. With remedial sanctions the court can also award your attorney fees incurred trying to gain compliance with the orders. Finally, you can also seek a jail term which can end with his compliance. Oftentimes, the threat of jail can be a compelling motivator. In essence, the purpose of the remedial contempt would be to “remedy” the violation the orders. Drawbacks with contempt motions are that they require multiple court hearings and can take several months to resolve.
Again, presuming the orders do not provide specificity as to how long he has to sell the home, keeping the home in good condition and on the market, provisions for resolving disputes as to sales prior, or consequences if he does not timely deal with selling it, there may be a less often used remedy provided in C.R.S. 14-10-122. Though this statutory section is generally invoked to deal with modifications of maintenance and child support, there is a brief reference in section (1) regarding modifications of property division orders. Thus, if the orders are insufficient from a detail standpoint, the court may be willing to modify them to provide additional protections and to ensure sale ultimately occurs.
If the home is financed in both parties’ names, there are going to additional concerns tied into getting the home sold such that you are off the loan. Perhaps you need this done to proceed with purchasing a new home yourself. If there are not concerns regarding being removed from the financing, a third option might be to seek entry of judgment for a certain amount of equity, plus interest. If your share of the equity is already ascertained, sale might not matter if there are other means available for getting your share of that equity.
Whenever you are dealing with the sale or division of real estate in a divorce, it’s always important to seek as much detail as possible in your orders. As such, it is advisable to at least consult with a Denver divorce attorney prior to your final hearing or before entering into a settlement agreement. The same holds true when you are dealing with issues of enforcing your orders.
The attorneys at Plog & Stein are available and ready to assist with enforcing your orders regarding division of the marital real estate. Let us put our legal skills and years of experience to work for you. Contact us online or call us at (303) 781-0322 to schedule an appointment.