November 6, 2017

Can I buy or sell a house during my divorce? The Temporary Injunction.

Although buying and selling a house during a divorce seems like a far fetched goal for a person going through divorce, it is not as uncommon as one might think. A word of advice—buying a house in the middle of the divorce, is not the smartest move. What is important to recognize in Colorado is the Temporary Injunction that goes into place when a divorce case is filed.Temporary Injunction

The Temporary Injunction is an automatic Order of the Court that falls into place when a divorce case is filed. It is a broad order that applies to every single divorce case that is filed. What does the temporary Injunction do? Exactly this:

Automatic Temporary Injunction – By Order of Colorado Law, You and Your Spouse are:

  1. Restrained from transferring, encumbering, concealing or in any way disposing of, without the consent of the other party or an Order of the Court, any marital property, except in the usual course of business or for the necessities of life.  Each party is required to notify the other party of any proposed extraordinary expenditures and to account to the Court for all extraordinary expenditures made after the injunction is in effect;
  2. Enjoined from molesting or disturbing the peace of the other party;
  3. Restrained from removing the minor children of the parties, if any, from the State without the consent of the other party or an Order of the Court; and
  4. Restrained without at least 14 days advance notification and the written consent of the other party or an Order of the Court, from canceling, modifying, terminating, or allowing to lapse for nonpayment of premiums, any policy of health insurance, homeowner’s or renter’s insurance, or automobile insurance that provides coverage to either of the parties or the minor children or any policy of life insurance that names either of the parties or the minor children as a beneficiary.

Buying and Selling Property

Buying and selling property without an explicit agreement from your spouse is a risky move. The reason why it is risky is the simple fact that you are still married, and what’s mine is yours. If you buy a property during the divorce, the money used to purchase the property and any equity in the property, is considered marital money; unless somehow you magically receive a special gift that is not comingled with the marital estate. That being said, even if you “bought the house on your own” your spouse is still entitled to his or her marital share.

Selling property during a divorce can be a little more common ground, specifically when it is the marital home. Parties do not have to wait until the end of the divorce to put the marital home on the market. So long as there is an explicit written agreement that details the distribution of the proceeds, and that written agreement is filed with the Court, the parties can sell marital property. In fact, that goes for any sort of property, not just real property.

Some advice, before you decide to sell or a buy a house during your divorce case, consider whether or not your in violation of the Temporary Injunction.

Christopher Nicolaysen is a Family law Attorney who practices in Colorado Springs, CO. He graduated from Denver Sturm College of Law, and has been practicing law for several years now. Christopher Nicolaysen is passionate about helping you solve your family matters. Learn more about his experience here.

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