What to ask your attorney before listing

Why I send you to counsel

As your listing agent, I'm required to advise you to get expert advice on matters beyond my expertise (ORS 696.805). Divorce law is one of them. I know a lot about selling houses. Your case is a different subject, and a wrong guess from me about what your case allows could cost both of you far more than the hour it takes to ask the right person.

The questions below are the ones whose answers I need before I can list your house responsibly. Each spouse should ask their own attorney. If you share a mediator, ask there too. Write the answers down and put them in the shared folder, or have the attorneys send them to me directly.

Where the case stands

Timing matters. Once the summons and petition are served, what either of you can do with the house on your own changes, and I need to know which side of that line you're on before I put a sign in the yard or a listing online.

1. Has a petition been filed? In which county, and what's the case number?
2. Have the summons and petition been served, and on what date?
3. If so, the status quo restraint in ORS 107.093 applies: neither of us can transfer, encumber, conceal or dispose of property the other has an interest in without written consent or a court order. What does that mean for listing and selling our house?
4. When does the restraint end? The statute says it lasts until the judgment, a dismissal or a court order, and either party can ask for a hearing. Do we need one?

Permission to sell

I list a house in a divorce on the written agreement of both owners or on a court order, and I want to know which one we're relying on. These are the questions that settle it:

1. Do we have written consent from both spouses to list and sell, and is the form it's in enough?
2. Should our agreement be made a stipulated order, or is a signed letter fine?
3. Who signs the listing agreement, and who signs the sale agreement with a buyer?
4. Everyone on title signs the deed at closing. Is anyone else on title, and do they need to be involved now?
5. Our deed names us as spouses. Oregon treats that as a tenancy by the entirety unless it says otherwise (ORS 93.180). Does that affect anything in our case?

How the proceeds are handled

Closing pays off the loans and the costs of sale, and then the money that's left has to go somewhere. The title company needs written instructions, and your attorneys write them. Start that early, because instructions drafted in closing week, with a buyer waiting and both of you anxious about the money, are the ones most likely to be argued over.

Ask these:

1. Will the proceeds be split at closing, or held until the judgment? If held, where, and by whom?
2. Who gets credit for payments made since separation, or for repairs one of us paid for?
3. The court considers reasonable costs of sale and taxes when it divides property (ORS 107.105). How will the costs of this sale be treated in our division?
4. What do the closing instructions need to say, and who sends them to the title company?

Paying for the house meanwhile

The house costs money every month until it sells. Ask about it before it becomes a fight, because the answer shapes how long you can wait for the right offer and how much each of you ends up with when the carrying costs are settled at closing.

Three questions:

1. Who pays the mortgage, taxes and insurance until closing? Should we write that down, or ask for a temporary order under ORS 107.095, which covers use and possession of property and who pays the liens?
2. Who gets to live in the house during the sale? In Lane County, SLR 8.042 sets out how a motion for exclusive use of the family home is brought. Is that relevant to us?
3. If one of us stops paying, what happens next?

Questions for your CPA

Tax is its own field, and your attorney may send you to a CPA for these. I can tell you what IRS publications say. How they apply to you is a CPA's work, and the answers can differ between the two of you even though you're selling the same house on the same day. Bring this list.

1. Do we each qualify to exclude gain on the sale? IRS Publication 523 allows up to $250,000, or $500,000 for a married couple filing jointly, if the ownership and use tests are met.
2. If one of us moved out, does the time still count? Pub 523 lets you count the home as your residence while a former spouse is allowed to live there under a divorce or separation instrument and uses it as a main home.
3. If one of us transfers the house to the other instead of selling, is that taxable? Under IRC section 1041, a transfer to a spouse or former spouse incident to divorce is generally not a taxable sale, and Pub 504 says the receiving spouse takes over the transferor's basis.
4. Does divorce count as an unforeseeable event for a reduced exclusion if we don't meet the full tests?

If you don't have an attorney

Not everyone has one, and the courts know that. In Lane County, the Family Court Assistance Office on the second floor of the courthouse at 125 East 8th Avenue in Eugene, 541-682-4302, explains procedures and reviews forms by appointment. Its facilitators can't give legal advice. Oregon's divorce forms are free on the Oregon Judicial Department website.

The other counties I serve have similar offices, listed on each county page. Free help with forms isn't a substitute for legal advice on your house. Ask anyway.