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Deferred Sale of Marital Home For the Best Intest of the Child - Rhode Island Divorce Law
By: david slepkow, Fri Sep 18th, 2009
Can the Rhode Island Family Court defer a sale of the marital home for the child/children in a divorce case?
If one of the parties requests a deferred sale of the home in a Rhode Island( RI) divorce, then the court must determine whether or not 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 making that determination the court will look at the income of the resident parent, any alimony the parent receives, child support and other source of income to make those payments. The intent of this law is to prevent foreclosures, uninsured property, and deterioration of the marital home as a result of a divorce and to protect the parents' equity in the house. R.I.G.L. 15-5-16
After the divorce court determines that it is "economically feasible" for the parent to remain in the house with the minor child, the court will consider whether it is in the best interests of the minor child or children to live in the house. The court will use its discretion in making this determination.
In most cases where there are children and the custodial parent can afford the marital home, the 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.
In the event that the court defers the sale of the house in a divorce, the Rhode Island Family Court will usually determine the equity in the house. The court will determine the equitable share of the person leaving the marital domicile. In many cases, if the parties cannot agree to the fair market value of the real estate then the parties will need to hire real estate appraisers. The court will hear testimony from the appraisers and determine the fair market value of the home. In some cases the parties agree to use the same real estate appraiser. Please note that in the vast majority of cases, these matters are settled out of court prior to any trial or hearing.
After the period of deferment the house must be sold and the parent who is out of the house will be paid his or her equitable share at that time. The court will usually order a mortgage to protect the person who is owed money for their equitable share. The court may also award interest on the mortgage. If the court orders a deferred sale of the house, it can be modified or terminated at the discretion of the court. 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 parents 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.