By Madelin Espino, CDRE, CDS Court Appointed Certified Real Estate Expert
One of the most contested and aggressively litigated issues in any divorce proceeding is the disposition of marital real estate. The dissolution of a marriage often stirs intense anger, which may become the impetus for seeking revenge among former spouses. That desire for retribution sometimes leads the divorcing spouses to wage “war” over the marital home which can result in disputes over the selection of the listing agent, the date the property is listed, the life span of the real estate listing agreement, a reasonable listing price, how to address price reductions in view of market conditions, and how to distribute the proceeds from the sale.
As a Court Appointed Certified Divorce Real Expert I have witnessed first-hand the impact of anger and retribution by divorcing parties when the court’s order is silent or ambiguous as to critical terms concerning the sale of the marital home. This uncertainty causes unnecessary stress on the parties, their counsel and the court. It also results in a waste of judicial resources through avoidable motion practice, and meaningless delays.
Many Family law practitioners have discovered that the secret to minimize stress in connection with the disposition of marital real estate is to ensure that the court order or final judgment contain at least the following six critical terms.
Time Limit on Refinance or Buy Out. Oftentimes one of the spouses opts to buy-out the other spouse’s interest in the marital home. If the timeline for the buy-out is open ended without an established date, or ambiguously worded, such a provision will be difficult to enforce. The better practice is to ensure that the court order or final judgment clearly specifies the timeframe and actual date that is realistic with today’s lending guidelines. In addition to a clear time limit, the consequences of failing to comply with the stated deadline, must also be clearly contained in the court’s order, i.e., that the property must be immediately listed for sale.
Name the Realtor. Unless the parties expressly agree on the realtor, the court will have to appoint a realtor to sell the marital home. However, some court orders optimistically state the parties shall “agree on a realtor” within a designated time frame. This type of order opens the parties and counsel to another point of disagreement. For that reason, the court order MUST state the name of the realtor, brokerage name, and contact information that parties have either agreed upon, or appointed by the Court. If a Certified Divorce Real Estate Expert is neither named nor appointed, any other realtor will be looking for the quick sale by telling the client what they want to hear. The client may be looking for someone to manipulate. A realtor with a CDRE designation is trained and experienced through neutrality and confidentiality to eliminate manipulation tactics between dueling spouses when selling marital real estate.
Date of Listing. Another critical item in the court order is the date by which the marital home must be listed for sale. Some court orders contain listing dates that are simply unrealistic, or simply neglect to include the listing date, which makes the order hard to enforce. The best practice is to clearly state in the court order that the parties shall contact the CDRE real estate agent within x days and shall sign the exclusive listing agreement within x days (minimum 3 days).
Fixed Price and Price Reductions. Pricing of real estate in our current market is a moving target, and when the price is dictated by the parties, counsel or the court, it can delay the process and depress the home’s value. The longer a property sits on the market, the more prospective buyers wonder if there is something wrong with it, leading to lower offers. The ideal practice is to specify in the court’s order that the CDRE real estate agent perform a market analysis and recommend the listing price and any price reductions based on their knowledge of the market.
Personal Property. The removal of personal property often becomes an 11th hour issue if not addressed in the court order. In order to avoid this situation, best practice dictates that the court order contain a timeline of when personal property should be dispersed, preferably before the house even goes on the market. Our experience has shown that a decluttered or vacant home is more favorable to prospective buyers than a home cluttered with furniture, boxes and other items.
Proceeds Distribution. This is another last-minute issue which can result in disbursement errors and uncertainty among the parties as to when they’ll have access to funds, often resulting in delays and reluctance to cooperate during the time the property is on the market or at the closing. The best practice on this issue is to detail exactly how proceeds are to be disbursed in the court order, including any payments that are to be made to counsel.
While the foregoing is by no means an exhaustive list of terms to consider in a court order related to the disposition of marital real estate, ensuring that at least these items are squarely addressed in the order will certainly minimize the stress on the parties, their counsel and the court.
It is my great privilege to serve our family law community in the State of Florida as a Court Appointed Certified Real Estate Expert, a designation earned by less than 1% of realtors nationwide. I have been court appointed as the designated realtor and special magistrate in numerous family law matters, and have over 20 years’ of experience as a realtor.
For more information concerning my credentials and experience, or to receive a complimentary copy of my book, Divorce Real Estate 101, I welcome you to visit my website www.madelinespino.com. Also, if you have a case that could benefit from my specialized divorce real estate services, feel free to contact me directly via email at madelin@madelinespino.com.
Thanks
Omar J. Arcia, Esq.
Law Office of Omar J. Arcia, P.A.
Huntington Square III
3350 S.W. 148th Avenue
Suite 110
Miramar, Florida 33027