Keeping the house for the children
The Rhode Island Family Court only has jurisdiction to defer the sale of a marital domicile in a divorce if there are minor children residing in the former marital domicile. Of course, parties can always agree to defer the sale of a parcel of real estate irrespective of whether they have children under the age of 18 years of age.The modern trend is for some judges to be somewhat resistant to ordering the deferred sale of the former marital domicile.
Update October 17, 2023- Deferred sales are widely disfavored in these modern times by most judges.
Economic feasibility
If Husband or Wife who has physical custody of a minor child requests a deferred sale of the home, then the Providence Family Court must determine whether it is economically feasible for the person who is living in the home to pay the mortgage, liens, taxes and insurance on the home until the home is sold. In examining the relevant facts and circumstances of the case, the Rhode Island Family Court will examine the income of the resident spouse, any alimony that the litigant will receive and child support payments. Pursuant to R.I.G.L. 15-5-16 the rationale for this legal statute is to prevent foreclosures, uninsured property, and deterioration of the former marital domicile and to protect the parents’ equity interest in the real property.
Best interest of child
Once the Court makes a legal finding that it is “economically feasible” for the custodial parent to remain in the marital domicile, then the Providence Family Court Justice or General Magistrate will look into whether it is in the best interests of the minor child or children to remain living in the real estate. The Justice of the RI family Court will utilize his or her discretion in making such decision. In many divorces when there are one or more children and the parent with placement of the children can afford the former marital home, the Providence Family Court will exercise its discretion and allow the children to remain in the house for a period of time, which may be until the youngest turns 18 years old and graduates from high school.
If the Kent County Family Court Justice defers the sale of the former marital home, the Kent County Family court will establish the amount of equity in the house at the time of the marital dissolution. The Providence divorce Court will determine the equitable share of the non-custodial spouse exiting the former marital domicile. If the litigants are unable to settle on an agreed amount as the fair market value (FMV) of the property, then feuding spouses will need to retain real estate appraisers. The Providence Family Court will hold a testimonial hearing and the justice will hear testimony from the dueling real estate appraisers. The Judge of the Family Court in RI will make findings concerning the fair market value of the real property. In certain cases, testimony is unnecessary because the husband and wife agree to use the same real estate appraiser.
Deferred sale of marital domicile (home)
After the period of deferment, the former marital home must be sold at fair market value and the noncustodial parent would get his or her share of the equity. If the RI Family Court orders a deferred sale of the marital real estate in the best interest of the parties’ minor children, it can be modified or terminated at the discretion of the court if there is a substantial change in circumstances. If the party living in the house with the children remarries or there is a substantial change of circumstances in the economic status of the person living in the house, then the property may be ordered sold.
In many cases when the custodial parent can afford an increased mortgage payment, the parties will settle with the custodial parent refinancing and buying out the noncustodial parent’s equitable share of the equity in the house. At that refinance the non-custodial parent receives cash and typically deeds over his/her interest in the house to the custodial parent.
There are several reasons to consider deferring the sale of the marital domicile (the family home) in a divorce, especially when children are involved. Decisions related to the marital home should prioritize the best interests of the children and the financial well-being of both spouses. Here are some reasons to defer the sale of the marital domicile in a divorce with children:
- Stability for Children: Maintaining the family home can provide a sense of stability and continuity for the children during a challenging time. This can be especially important for their emotional well-being.
- Familiarity and Comfort: The family home is a place where children have grown up, and it is often associated with a sense of security and comfort. Keeping the home intact can help children maintain a sense of familiarity.
- School and Community Ties: If the home is in a school district or community where the children are established and have strong ties, selling the home can disrupt their education and social connections. It may be preferable to defer the sale until a more suitable time.
- Emotional Attachment: Children can have strong emotional attachments to their home. Selling it immediately can be emotionally distressing for them.
- Co-Parenting Arrangements: If both parents intend to maintain close involvement in the children’s lives through shared custody or co-parenting, it may be more practical to keep the family home as a shared residence.
- Temporary Financial Considerations: In some cases, one spouse may not have the financial means to immediately buy or rent another home. Deferment of the sale can provide time for that spouse to secure alternative housing and financial stability.
- Real Estate Market Conditions: Delaying the sale of the home could allow for more favorable market conditions, potentially resulting in a higher selling price. This could benefit both parties financially.
- Children’s Input: Depending on their age and maturity, involving the children in the decision-making process can help them feel more in control and comfortable with the changes.
- Family Support Network: The marital home may be situated in a neighborhood where extended family and close friends can offer support and assistance to the children and both parents. Maintaining this network can be beneficial.
- Emotional Closure: Divorce is a complex process, and for some families, keeping the marital home can offer emotional closure. It allows time for both spouses and children to adjust to the new family dynamic gradually.
It’s essential to work with legal professionals, such as divorce attorneys and mediators, to address the specific circumstances of your divorce and make decisions that are in the best interests of your children and both spouses. Deciding whether to defer the sale of the marital home should be based on a thorough assessment of your unique situation and the needs of your family.