Situation
Selling before the divorce is final
You don't have to wait for the judgment to sell. You do have to sell in a way that both of you, and the court's automatic order, can live with.
This situation
What changes.
The short answer
Yes, you can sell before the divorce is final. Once the summons and petition are served, ORS 107.093 restrains either spouse from selling property the other has an interest in without the other's written consent or a court order. The practical path is a written agreement to sell, signed by both of you, with your attorneys deciding where the proceeds sit until the judgment.
- 01
Why some couples sell early
Selling while the case is open can make sense when neither of you can carry the payment alone, or when the house is the biggest unanswered question and settling it would let the rest of the settlement fall into place. It can also go the other way. Sometimes waiting is better. That's a call for the two of you and your attorneys, and the answer on selling before or after filing lays out what to weigh.
What I can tell you is what the sale looks like when the divorce isn't done. It looks like any other listing with one extra layer of paper, and one rule I never bend: you both hear everything at the same moment.
- 02
The automatic order after service
Oregon puts a restraint in place as soon as the summons and petition are served. Under ORS 107.093, neither spouse can transfer, encumber, conceal or dispose of property the other has an interest in without the other's written consent or a court order. It lasts until the judgment, a dismissal or another order, and either of you can ask the court for a hearing.
So I want a signed, written agreement to sell before a sign goes in the yard. Your attorneys can draft it. It should cover the decision to list, how the price gets set and what happens to the money at closing. At the very end, everyone on title signs the deed.
What the restraint covers, in plain terms.
The status quo order - 03
Where the money waits
Settle this part first. When a house sells mid-case, the check doesn't split itself. Under ORS 107.105 the court divides property as may be just and proper in all the circumstances, starts from a rebuttable presumption that both spouses contributed equally to property acquired during the marriage, and considers reasonable costs of sale.
Ask your attorney whether the net proceeds should be held until the judgment, by whom, and who can release them. Put the answer in writing so the title company gets one set of instructions signed by both sides. Run your own figures in the equity split calculator beforehand so nobody is surprised at the closing table.
A short email from each attorney to the title company, saying the same thing in the same words, keeps closing day calm.
- 04
Taxes while you're still married
Your filing status in the year of the sale can matter. IRS Publication 523 lets a seller exclude up to $250,000 of gain on a main home, or up to $500,000 for a married couple filing jointly, when the ownership and use tests are met. Whether you'll file jointly that year is a question for your CPA, not for me.
Bring your CPA the closing statement from when you bought, plus the date each of you last lived in the house. Expect them to ask for both.
If one of you moved out a while ago, mention that as well, because the use test turns on where each of you actually lived, and those dates can shift the answer when a house sells in the middle of a case. I can't tell you how it comes out. Your CPA can.
- 05
How I run a sale that isn't finished
I don't take sides. I don't carry messages, either. Under ORS 696.805 a seller's agent owes honesty, good faith and timely presentation of written offers to all parties, so whatever I learn about the sale reaches both of you on the same day.
- You each get the Oregon initial agency disclosure pamphlet at our first contact, whether we meet together or one at a time.
- I prepare one pricing analysis and send it to both of you in the same email.
- Your attorneys confirm the written agreement to sell is signed before the listing goes live.
- Every offer goes to both of you, in writing, at once, with the same one-page summary.
- I keep a running file of every document so either attorney can ask for a copy.
- 06
Questions for your attorney
Take the checklist with you. It's the paperwork list I'd want in hand before any listing goes live, and filling it in first means your attorney meeting starts with documents instead of guesses.
- Is our written agreement to sell enough under ORS 107.093, or do we also want a court order?
- Where are the net proceeds held until the judgment, and who signs to release them?
- Who pays the mortgage, taxes and insurance until closing?
- If one of us wants to keep the house after all, how long do we have to decide?
Sources · checked 23 Oct 2026
Ask Larissa
Questions people ask
Can we list the house before either of us files?
Yes. Before papers are served, the ORS 107.093 restraint isn't in effect, but I still want you both agreeing to the listing in writing, because everyone on title signs the deed at closing anyway. Selling before or after filing can change the tax picture and the property division, so talk to your attorney before you sign a listing agreement.
Does selling early mean we've agreed on the split?
No. Selling the house and dividing the money are separate decisions. You can agree to sell now and leave the split to your settlement or the judgment, as long as your attorneys agree on where the money sits in the meantime. Under ORS 107.105, the court divides property as may be just and proper in all the circumstances.
What if one of us changes our mind after the house is listed?
Then I pause and tell you both. I won't push a listing forward over one owner's objection, and once papers are served, ORS 107.093 needs written consent or a court order in any case. Your attorneys can sort out whether the earlier agreement still holds. Meanwhile I keep the house show-ready and the information even.
Will buyers know we're divorcing?
Your reason for selling isn't something I advertise. Before the first showing, I'll ask you both how you'd like me to answer if a buyer's agent asks why you're moving, and we'll agree on one plain sentence. The answer on what to tell buyers goes through the options.
Confidential consult
One conversation, no pressure.
Tell me where things stand. I’ll tell you what the sale could look like for your situation, and what to ask your attorney first.