What is a Deferred Sale of Home Order?

March 27, 2024 | By Doppelt and Forney
What is a Deferred Sale of Home Order?

Standard issues in a family law case include the marital residence in addition to alimony, child support, custody, visitation, division of other assets and division of other debts. For example, child support is calculated by the Disso Master and is much more certain that whether the family residence will not be sold in the judgment.

A Duke order defers the sale of the family home after the date of judgment in a family law case in Superior Court in San Diego. This is not the standard order and it is a complicated analysis. California Family Code Sections 3800 though Section 3810 provide the statutory authority for a deferred sale of home order. This is often referred to as a Duke order as this was the name of the case which authorized this.

A deferred sale of home order [temporarily] will delay the sale of the family home. In addition, the order will award temporary possession and exclusive use to a custodial parent of a child entitled to child support due to some of the following factors; minor; in under the age of 19 and in high school full time or incapacitated. The rationale of the order is to minimize the impact adversely of the dissolution of marriage or legal separation of the parties on the best interests of their child.

For purposes of this discussion, "Custodial Parent" = a party awarded either joint or sole physical custody of a child or children. One of the spouses will need to make a request in San Diego Superior Court, if opposed, for a deferred sale of home. The Judge must initially determine whether it is feasible economically to maintain the payments of any obligations secured by a deed of trust, property taxes or insurance during the time the sale of the home is deferred.

The Court will consider the income of the resident parent, the availability of spousal and/or other support, and any sources of -funds available to meet the outstanding obligations. Issues which can arise include the below:

  • possible defaults on the payments of mortgage on the property
  • resulting foreclosures
  • to avoid inadequate insurance coverage which can jeopardize the equity
  • prevent deterioration of the condition of the family home
  • prevent any other circumstance which would jeopardize both parents' equity in the home

What Are The Criteria That The Family Law Court Considers In Whether To Grant Or Deny The Deferred Sale Request?

The Court must analyze and then determine the deferred home order is necessary. In formulating this analysis, the Court considers the below:

  • how long has the child or children resided in home.
  • grade of child or children in school.
  • convenience and accessibility of day care, school and other services or facilities used by children or child.
  • any renovations or modifications for accommodation of physical handicap of child or children or custodial parent.
  • what would be the emotional detriment to children or child if their residence changed.
  • does the location of residence permit the custodial parent to continue employment.
  • what is the financial ability of each parent to obtain housing which is suitable.
  • what are the tax consequences to each parent.
  • what would be the economic detriment to the parent who is not living in the house if a deferred sale of home is the order.
  • other equitable factors.

What Does The Order Include If Granted?

The order for the deferred sale must state how long the deferral is and may include the property's legal description and assessor's parcel number. It may be recorded with the San Diego County Recorder. The order may also list specifically the spouses responsibilities for the payment of the costs of capital improvements and routine maintenance.

The Court Order shall also shall reserve jurisdiction to determine any issues that arise for modification or termination. A deferred sale of home order may be modified or terminated at any time at the discretion of the court unless the spouses agree otherwise in writing. Change of circumstances, such as remarriage of the custodial parent affecting the economic status of the parties or the children, may result in modification or termination.

How Can A San Diego Law Firm Help You?

The law office of Doppelt and Forney, APLC can assist you with your family law case in San Diego Superior Court whether your issue is deferral sale of residence or others.. Their law office offers a complimentary virtual consultation up to 30 minutes in their office which is confidential.