Selling the Marital Residence

I’ve been living in the marital residence since our separation began. We are still co-owners of the house. Divorce was final almost a year ago. The separation agreement calls for the house to be listed for sale by Spring 2012. Although I’m hoping for a conflict-free transaction, I would like to get a handle on my rights, obligations, and an understanding of common practice in this situation.

Some things which have some up already (which are NOT covered in any way in the separation agreement):

  • Does my ex get to have a choice in the listing agent?
  • Am I obligated to give my ex (co-owner) access to the property during the sale process?
  • Can I set the listing price and sale price, or do I need to reach a consensus with my ex?

Those questions really depend on what your agreement says. Often, the SA will outline that the parties must agree upon a realtor, initial listing price, etc., but parties can change those terms to suit their unique situations with their own agreements. So, it depends on what is outlined in your agreement. You must follow whatever it says. No, he wouldn’t be able to come over to the house without your permission if you are the one currently in possession of the house. At the same time, you have a duty to him to maintain the home in good condition for the purpose of getting it sold.

A follow-up question regarding repairs…

Our separation agreement specifies “Any expenses required as part of the sale, including but not limited to the cost of repairs necessary to list the property … shall be split equally.” Where is the dividing line between this statement and my duty “to maintain the home in good condition for the purpose of getting it sold”?

My ex is currently refusing to share the cost of ANY repairs. This include items which were in need of repair at the time of separation, because I have “not prevented further decline”.

If you feel he is violating the agreement by failing to provide money for any repairs, then I would suggest you file for specific performance, to have the court order him to pay for the repairs according to the agreement terms.

Our separation agreement does not specify any of these things. While I had hoped to work these things out collaboratively, discussions and communications have broken down. Do I have a right to choose my own agent and put the house on the market on my own? Can I use the following clause from the SA to force my ex to sign the listing agreement and/or the sale paperwork?

Sale Of Property. In the event of a sale, transfer, or conveyance of any real or personal property now owned or hereafter acquired by either of the parties, if (notwithstanding the mutual releases contained in this Agreement) either party to this Agreement is called upon to execute a deed, conveyance, bill of sale or other instrument conveying said property, then the party called upon will sign any such instrument which may be reasonably required or reasonably necessary to perfect title in the grantee of the property which is sought to be conveyed.

I’m sorry but direct review and interpretation of documents is beyond the scope of this forum. All I can say is that you must follow what is outlined in your SA. You cannot go beyond what was authorized therein and have him be bound to it under contract law.