Timing · Answer
Should we sell the house before or after filing for divorce?
The short answer
There's no single right answer, and it's a question for your attorney and CPA. Selling before divorce papers are served avoids the ORS 107.093 restraint, but you still need to agree as co-owners. Selling after service means getting written consent or a court order. Filing status, who lives there and how proceeds are held all affect the choice.
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Selling before you file
Before the summons and petition are served, the ORS 107.093 restraint isn't in play. You sell the way any two co-owners sell: you both agree, you both sign, and the deed goes to the buyer. That can be simpler on paper. It isn't simpler between two people who are still deciding to separate. Two people can sell a house they own together without asking anyone's permission, but they still have to agree on the agent, the price, the repairs and who signs what, and that agreement is the hard part when a marriage is ending.
The catch is that nothing has been divided yet. If you sell first, you'll have to decide together where the money sits until you and your attorneys work out the split. Write that down before closing, not after.
- 02
Selling after you file
After service, the house can still sell. You'll need the other spouse's written consent or a court order under ORS 107.093, so your attorneys are part of the plan from the start. With papers served, there's someone on each side who can put an agreement about the sale and the proceeds into writing quickly, and in words that hold up later. That structure can be steadying, because each step has a document behind it and nobody is guessing what the other agreed to.
There's also the court's view of costs. Under ORS 107.105, when the court divides property it considers reasonable costs of sale, taxes and other reasonably expected costs. Your attorney can tell you how a sale before or after filing might play into that.
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Questions for your CPA
Tax rules can tip the timing. IRS Publication 523 allows up to $500,000 of excluded gain for a married couple filing jointly, or $250,000 for other filers, if the ownership and use tests are met. It also treats divorce or legal separation as an unforeseeable event that can qualify a seller for a reduced exclusion. Bring your closing estimate. Then let your CPA tell you whether the calendar year of the sale matters for you.
The practical questions are yours to weigh together: who lives in the house now, who can carry the payments, and how much work it needs before it shows well. The keep-or-sell tool and can we sell before the divorce is final help you lay those out.
Sources · checked 23 Oct 2026
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