A common issue that arises in the event of dissolution or legal separation is what to do with the family home. Do the parties sell the home and split the proceeds from the sale? Does one party buy out equity interest from the other? In cases where there are minor children, the issue is further complicated. Does the custodial parent live in the house while the non-custodial parent continues to contribute towards the monthly mortgage payments? These are all questions that may need to be addressed during a dissolution proceeding.

In cases where there are minor children involved, deferring the sale of a family home may be appropriate. At the request of one of the parties, the court may look to a Deferred Sale of Home Order also known as a “Duke” order from the case in which it arose.

A Duke order is a temporary delay in the sale of a home and an award of temporary, exclusive use and possession of the family home for the custodial parent of a minor child. The underlying reasoning behind a Duke order is that since it may be difficult for one party to simply buy the other party out of their equity interest in the home, a remedy should exist to prevent the economic, emotional, and social hardships that uprooting the custodial parent and the minor child might have.

In such a case, the Court will balance the potential hardships on the custodial parent and the minor child with the economic hardship the deferment may have on the non-custodial parent. The Court will look at the custodial parent’s income, the availability of spousal and child support and auxiliary sources of funds to make mortgage payments. The Court will also consider a host of other factors in evaluating the potential hardships espoused above. These include the length of time the child has resided in the home, the child’s placement or grade in school, any disabilities the child may have that the home has been adapted to accommodate, the ability for the custodial parent to find alternative housing, and more.

If the order is made, the Court will create certain conditions that upon satisfaction will end the period of deferment and allow for the sale of the home. These can include the minor child turning 18 and/or graduating from high school. As this is a highly factual inquiry, the family lawyer will need to look at the impact that a potential sale of the family home will have on all parties before pursuing a Duke order.

10.0Diana Pamela Zitser

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diana@zitserlaw.com