Upon separation, what if one spouse wants to sell the matrimonial home and the other does not. The court in Ivancevic-Berisa v. Berisa dealt with this exact issue. The couple entered into a separation agreement in which they both agreed that the matrimonial home would be sold. The husband was allowed to stay in the matrimonial home until it was sold. However, the husband refused to sell the home. He indicated that he would rather buy out the wife’s share of the home. He even threatened to destroy the renovations made to the home. The wife brought a motion for an order dispensing with the husband’s consent to take all the necessary steps to sell the home.
Ultimately, the court granted the wife’s motion. The court looked at the separation agreement between the couple, which indicated that both parties agreed to sell the home. Further, the court found that under the Family Law Act, the wife is permitted to proceed with the sale of the matrimonial home since the husband is unreasonably withholding his consent and interfering with her efforts to sell the property. The court ordered the following:
- The wife shall use the agent she proposes.
- The wife may sign the listing agreement without the consent or signature of the husband.
- The wife may arrange showings of the home through the agent on 24 hours’ notice to the husband.
- The husband’s spousal consent with respect to all documents necessary to affect the sale of the matrimonial home is dispensed with.
- The proceeds of sale for the home after closing costs shall be held in trust by the wife’s real estate lawyer.
- The husband can stay in the home until closing.
- The husband shall preserve the matrimonial home and have it presentable for showings.
- This case also highlights the importance of drafting a well-thought-out separation agreement!
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