128 DIVorCe wItH DeCenCY
Of course, if the spouses can mutually agree between them-
selves to some other negotiated approach whereby one buys the
other out, or some third party buys out one of the spouses, or they
refinance and someone else comes on title, etc., then the court will
certainly approve it. The judge is obviously not going to make
you sell your house if both spouses desire to do otherwise.
In situations where the parties cannot agree, however (i.e., they
both want the house, they each want to buy the other out, or there
is a dispute over the valuations or terms of a buyout), then the
court will generally say, “Put the house up for sale on the open
market and let the market decide.” The house then gets sold to a
third party, and the parties split the proceeds. The split will usu-
ally be fifty-fifty, although the court can use its equitable distribu-
tion powers to restructure the percentage shares of the split.
Coping with kick-out orders. An order forcing one spouse to
vacate the residence may be granted on the court’s temporary
relief calendar if, but perhaps only if, actual physical violence
(or the likelihood of same if both parties were to remain in the
house together) can be demonstrated. A kick-out order is also
more likely if the house is so small that the couple can’t possibly
continue to both live there and have any distance between them-
selves. In these situations, somebody may indeed get thrown out
of the house.
Because it’s so expensive to force the “out” spouse to rent a
new place (especially while still bearing some responsibility for
payment of the main house mortgage), and because it’s such a
severe economic hit for someone to be forcibly removed from
their own house, and because it so badly prejudices a custody
case to have to be the one who leaves the home while your spouse
stays there with the kids—for all these reasons, the court may be
very reluctant to make anyone move out. Instead, we often see
strange sorts of resolutions where the court will say, “Well, why
don’t you two nice folks just both stay in the house, move into
separate bedrooms at opposite ends of the home, and unless there
is actual physical violence or really extreme emotional abuse, we
will just leave you both in there for the time being.” This bizarre
and uncomfortable situation can then remain in effect until the