Duke Order (Deferred Sale of Residence)

deferred-sale-of-residenceDivorcing parents understandably worry how the end of their marriage will affect their children. The parents will no longer be living together, the children will have to adjust to a new visitation schedule, there is the possibility of changing schools, and all the stress of a world turned asunder. It is no surprise then that sometimes parents will try to maintain as much normalcy as possible to reduce the impact of the divorce on their children, including keeping their family residence. The family home is often one of the most permanent and stable places for a child; it is where there bedroom is, where their friends live and near the school they attend.

Keeping the family residence in a divorce is not always an easy task. For many families, the family home is the single largest asset to divide in their case. If there is not enough money available for one of the parties to buy-out the other party’s interest in the home, there are very few options beyond selling the home to divide the proceeds.

One option is a request to defer the sale of the family residence. This means that one party (the custodial parent) gets to live in the family residence for a period of time to the exclusion of the other party. The idea for such a request was discussed in great detail in the 1980 Court of Appeal Case Marriage of Duke. In that case, the court balanced the financial impact of deferring the parties’ ability to access the equity in the residence with the emotional and financial impact selling the house would have on the custodial parent and the children. For a long time (and even still), these types of requests were referred to as Duke Orders.

The legislature eventually codified the request for the deferred sale of the family residence in Family Code §3800 et. seq. Section 3800(b) states:

“’Deferred sale of home order’ means an order that temporarily delays the sale and awards the temporary exclusive use and possession of the family home to a custodial parent of a minor child or child for whom support is authorized…in order to minimize the adverse impact of dissolution of marriage or legal separation of the parties on the welfare of the child.”

Before a court can make an order for the deferred sale of a family residence, the court must determine if it is economically feasible to make such an order. That includes whether the custodial parent can afford to pay the carrying cost to maintain the residence, including mortgage payment, taxes, dues, and maintenance payments. Once the court finds that it is economically feasible, the court must then determine whether the request to defer the sale of the family residence is necessary in order to minimize the adverse impact of dissolution of marriage or legal separation of the parties on the child.

In making this determination, the court must consider:

(1) Time child has resided in home.

(2) Child’s grade in school.

(3) Accessibility and convenience of school, day care and other services or facilities used by child.

(4) Modifications to home for physical handicap of child or custodial parent.

(5) Emotional detriment to child of change in residence.

(6) Whether location of home permits resident parent to continue employment.

(7) Financial ability of each parent to obtain suitable housing.

(8) Tax consequences to parents.

(9) Economic detriment to nonresident parent of deferred sale of home order.

(10) Other equitable factors. (Fam. Code §3802.)

A request for the deferred sale of a family residence is a very fact based determination and will require the assistance of a skilled family law attorney. These types of orders are very often contested so you need an attorney who is not only knowledgeable but prepared to litigate the request.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding the deferred sale of a family residence. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

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