If you are going through a divorce and there is a house in the middle of it, you are probably asking two questions. Do we have to sell it? And if we do, should we sell it now or wait until the divorce is final? Going through a divorce and selling a home at the same time is a lot, so let’s take it one piece at a time.
Most articles on selling a house during a divorce are written for other states. Virginia has its own rules, and Hampton Roads has its own twist: a lot of the couples we meet are military, and orders do not wait for a judge.
We are not attorneys, and nothing here is advice for your case. Your divorce lawyer should have the final word. But we buy houses from couples in this exact spot, and these are the questions that come up every time.
Can You Sell a House During a Divorce in Virginia?
Yes. Nothing in Virginia law stops a married couple from selling their house while the divorce is going on. The catch is that you usually both have to agree.
- If both of your names are on the deed, you both have to sign to sell it. One of you cannot sell the whole house alone.
- If only one name is on the deed, the house can still count as marital property if you bought it during the marriage. Selling it without the other spouse on board can come back to bite you. Virginia judges are allowed to look at whether one spouse used up or wasted marital property around the time of the separation.
- If a judge has already made orders in your case, follow them. While a divorce is pending, a Virginia court can give one spouse the house to live in and order who pays which debts, including the mortgage.
In plain terms: if you both want to sell, you can. If you do not agree, talk to your attorney before anyone signs a listing agreement or a contract.
Who Gets the House in a Virginia Divorce?
Virginia is not a “community property” state, so the house is not automatically split 50/50. Virginia uses equitable distribution. That means a judge divides marital property in a way the judge decides is fair, which is not always half and half.
To decide what is fair, the judge looks at things like:
- How long you were married
- What each of you put into the family and the house, both money and work
- How and when you bought the house
- Each of your debts, and the tax effect of the split
- What led to the divorce
When it comes to the house itself, a Virginia judge has three main tools. The judge can order the house sold. The judge can transfer it to one spouse. Or the judge can let one spouse buy out the other, as long as the spouse keeping it takes over the mortgage.
Most couples never get that far. They work out what happens to the house in a separation agreement, and the judge signs off on it. That is usually faster, cheaper, and less painful than letting the court decide.
How Long a Virginia Divorce Takes, and Why It Matters for the House
For a no-fault divorce in Virginia, you have to live separate and apart for one year first. If you have no minor children and you have signed a separation agreement, that drops to six months.
That clock is why the “sell now or later” question matters so much. Six months to a year is a long time for one person to carry a mortgage, or for a house to sit half empty.
Here in Hampton Roads, divorces are filed in the circuit court for the city where you live. Virginia Beach, Norfolk, Chesapeake, Portsmouth, Suffolk, Hampton and Newport News each have their own.
Should You Sell the House Before or After the Divorce?
There is no one right answer. Here is how the two paths usually play out.
Selling before the divorce is final
- The good: The mortgage gets paid off, so neither of you is stuck with it. You turn the house into cash, and cash is much easier to divide than a house. You can both move on sooner.
- The hard part: You have to agree on the price, the timing and who handles what, while things may be tense. The money is often held until your agreement or the court says how to split it.
Selling after the divorce is final
- The good: When you sell a house after a divorce, your decree or agreement already spells out who gets what, so there is less to argue about at the closing table.
- The hard part: The divorce does not change your mortgage. If both of you signed the loan, you are both on the hook until it is paid off or refinanced, no matter what the decree says. If the person living there stops paying, both credit scores take the hit.
One more detail that surprises people. Many married couples in Virginia own their home as “tenants by the entirety.” When the final divorce decree is entered, that automatically turns into a “tenancy in common.” You each own a share, and you both still have to sign to sell the whole house.
How to Avoid Selling the House in a Divorce
Sometimes one of you wants to keep the house, often for the kids. That can work. The two common ways are:
A buyout. The spouse who keeps the house pays the other spouse for their share of the equity. Usually that means refinancing the mortgage into one name, which takes the other spouse off the loan. Before you agree to a number, get a real value on the house. Our guide on finding your home’s fair market value walks through how.
Keeping it together for a while. Some couples agree to keep owning the house jointly until a set date, like when the youngest finishes school, and then sell. If you go this way, put everything in writing: who lives there, who pays the mortgage, taxes and repairs, and exactly when and how it gets sold.
The honest warning on both: they only work if the spouse keeping the house can truly afford it alone. If they can’t qualify for the refinance, or the payments are a stretch, the house often ends up being sold anyway. The only difference is that it happens later, under more pressure.
Military Divorce and the House
Hampton Roads has one of the largest military communities in the country, so this comes up a lot.
- PCS orders change the timeline. If one of you is about to move, waiting a year to sell may not be realistic. Selling sooner can keep a house from sitting empty or becoming an accidental rental. Our guide to selling a house and moving out of state covers the timing.
- Deployment can pause the case. Under the federal Servicemembers Civil Relief Act, a servicemember whose duty keeps them from taking part can ask the court to put the case on hold for at least 90 days.
- Signing from far away. A deployed spouse can often sign the sale paperwork using a power of attorney. Title companies can be picky about the exact wording, so check with yours early, before you are up against a closing date.
- VA loans. If you bought the house with a VA loan and the non-veteran spouse keeps it, the veteran’s VA loan benefit usually stays tied to that house until the loan is paid off. Selling the house and paying off the loan frees it up for the veteran’s next home.
Taxes When You Sell a House in a Divorce
Most people who sell their main home do not owe tax on the profit. Each person can usually exclude up to $250,000 of gain, or $500,000 for a married couple filing jointly, if they owned and lived in the house for two of the last five years.
Divorce adds a helpful rule. If you moved out but your spouse keeps living there under your divorce decree or written separation agreement, the IRS lets you count that time as if you lived there too. So moving out does not have to cost you the tax break.
Every situation is different, so run your numbers by a CPA before you sign. Our post on avoiding capital gains tax on a home sale goes deeper.
Listing the House vs. Selling It As-Is
If you decide to sell, you have three real options:
- Fix it up and list it. Usually the most money. Also the most time, and the two of you have to agree on every repair, every price change and every offer.
- List it as-is with an agent. Less work up front, but buyers with loans take money off for anything they will have to fix, and showings can drag on for months.
- Sell it as-is for cash. Less money than a full retail sale, but no repairs, no showings, and a closing date you both pick.
If the house is in decent shape and you can both work together for a few months, an agent will beat our number. We will tell you that on the walkthrough, and we have done it plenty of times.
Selling for cash makes the most sense when the house needs real work, when one of you cannot afford to keep paying for it, or when you both just need it done. Fewer decisions means fewer things to fight about.
Here is exactly how we work out an offer, so you can run the math yourselves. We figure out what the house will be worth once the work is done. Our offer lands between 70% and 80% of that number, and that range has to cover both what we pay you and what we spend on the renovation.
Say the house would be worth $280,000 fixed up and needs $40,000 of work. 75% of $280,000 is $210,000. Take out the $40,000 of work and the offer is around $170,000.
No repairs, no commissions, and we pay all the closing costs. The title company splits the money at closing the way your agreement or your attorneys say to. To see what a regular sale would cost you instead, read how much it really costs to sell a house.
If the house is worth less than you owe, or a cash offer will not cover the mortgage, we can also look at creative financing, where we buy the house on terms instead of paying all cash up front. When it makes sense for both of you, that can get you out from under the house without bringing money to closing.
We buy across Hampton Roads: Virginia Beach, Norfolk, Chesapeake, Portsmouth, Suffolk, Hampton and Newport News.
Common Questions About Selling a House During a Divorce in Virginia
Can I sell my house during a divorce in Virginia? Yes, if both owners agree and sign. If a judge has made orders about the house, or if only one of you is on the deed, talk to your attorney first.
Can my spouse sell the house without me? Not if your name is on the deed. Every owner has to sign to sell. If your name is not on the deed but the house is marital property, your attorney can ask the court to protect your share.
Do we have to split the money 50/50? Not necessarily. Virginia divides marital property based on what is fair, not a set percentage. Most couples settle the split in their separation agreement.
Who pays the mortgage while the house is for sale? Whoever your agreement or court order says. If there is no order, you are both still responsible to the lender for any loan you both signed.
Is it better to sell the house before or after the divorce? Selling before usually means a cleaner split and nobody stuck with the mortgage. Selling after means the terms are already settled. It comes down to how well you can work together and whether one of you can carry the house in the meantime.
What happens to the house after the divorce is final? It goes wherever your agreement or decree says. If you still own it together, you both stay on the deed and on any joint mortgage until it is sold or refinanced.
Sell Your House for Cash During a Divorce
If you are trying to figure out what the house is worth to a cash buyer before you sit down with your attorneys, call us at (757) 337-2236. We will walk the house, give you a number within 24 hours, and tell you straight if listing it would get you more.