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Rhode Island Divorce Attorney - Sale of the Marital Home, Can it be Deferred?

Yes, the sale of the marital home can be deferred if certain conditions are met.  Generally speaking, the court will defer the sale of the marital home in a divorce when, after considering the finances of the parties, there are enough financial resources to sustain the home, both parties can still sustain reasonable standards of living, and deferring the home is in the best interests of the minor child(ren).

The definitions and actual standard as provided by law are set forth in Rhode Island General Laws §15-5-16.1.1 which is as follows:

§ 15-5-16.1.1  Deferment of sale of home. – (a) As used in this section, the following words and terms have the following meanings unless the context indicates another or different meaning or intent:

   (1) "Custodial parent" means a party awarded physical custody of a child.

   (2) "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 minor children, or children for whom support is authorized under this chapter, whether or not the custodial parent has sole or joint custody, in order to minimize the adverse impact of divorce on the welfare of the children.

   (3) "Resident parent" means a party who has requested or who has already been awarded a deferred sale of home order.

   (b) In any case in which one of the parties has requested a deferred sale of home order pursuant to this section, the court shall first determine whether it is economically feasible to maintain the payments of any note secured by a mortgage or other liens, property taxes, or insurance for the home during the period the sale of the home is deferred. In making this determination, the court shall consider the resident parent's income, the availability of spousal support, child support, or both spousal and child support, and any other sources of funds available to make those payments. The intent in requiring this determination is to avoid defaults on the payments of notes and resulting foreclosures, to avoid inadequate insurance coverage, to prevent deterioration of the condition of the family home, and to prevent any other circumstances which would jeopardize both parents' equity in the home. After making the determination that it is economically feasible to consider ordering a deferred sale of the family home, the court in exercising its discretion to grant or deny a deferred sale of home order, shall consider whether it is in the best interest of the child or children.

   (c) Upon a determination pursuant to subsection (b) of this section that a deferred sale of home order is indicated in order to minimize the adverse impact of divorce on the child, the court may make such an order. The order shall include the duration of the order, may include the legal description and assessor's plat and lot number of the real property which is subject to the order, and may be recorded in the office of the registry of deeds of the city or town in which the real property is located.

   (d) The court may make an order specifying the parties' respective responsibilities for the payment of the costs of routine maintenance and capital improvements.

   (e) Except as otherwise agreed to by the parties in writing, the following shall apply:

   (1) A deferred sale of home order may be modified or terminated at any time at the discretion of the court.

   (2) If the party awarded the deferred sale of home order remarries, or if there is otherwise a change in circumstances affecting the determinations made pursuant to subsection (b) of this section or affecting the economic status of the parties or the children on which the award is based, a rebuttable presumption, affecting the burden of proof, is created that further deferral of the sale is no longer an equitable method of minimizing the adverse impact of the divorce on the children.

   (f) In making an order pursuant to this section, the court shall reserve jurisdiction to determine any and all issues that arise with respect to the deferred sale of home order including, but not limited to, the maintenance of the home and the tax consequences to each party.

  • Published at the Rhode Island General Assembly Website