Selling a home during a divorce: Your options and steps

Written by Samantha SheltonNMLS 1647301Updated October 2026

This article is general information, not legal or tax advice. Outcomes depend on your own facts. Consult a Michigan real estate attorney and a qualified tax professional.

Selling a home during a divorce takes the agreement of both spouses on title, and the timing question carries a large dollar figure in the file. A couple who can still file a joint return may exclude up to $500,000 of gain on a main home; a single filer is capped at $250,000.

The alternative is a buyout: one spouse refinances the mortgage into their own name and pays the other their share of the equity. Both paths run through the same three numbers, what the home appraises for, what the payoff is, and what one of you can qualify for alone.

Learn how consent and court orders work, how the gain exclusion changes with filing status, and how a buyout refinance is underwritten. If you’re earlier in the process, start with our Selling a Home guide.

Key takeaways:

• Consent and the court calendar control timing: Both spouses on title generally have to sign, and a Michigan court cannot take proofs in a divorce until 60 days after the complaint is filed, or 6 months when there are dependent minor children under 18.
• Filing status sets the tax ceiling: The home sale gain exclusion is up to $500,000 on a joint return versus $250,000 single, and you generally need 24 months of ownership and 24 months of use in the 5 years before the sale.
• A buyout is a refinance, not a signature: When spouses have jointly owned the property for at least 12 months, Fannie Mae treats the buyout as a limited cash-out refinance rather than a cash-out, and the spouse keeping the house still has to qualify on one income.

What makes selling a home during a divorce different?

Two people who no longer agree have to make one set of decisions, and a court may be watching. If both names are on the deed, both signatures are needed to list, to accept an offer, and to convey.

Several states enter an automatic restraining order the moment a divorce is filed, freezing transfers of marital property. Michigan does not. Restraint here comes from an order somebody has to ask for: under MCR 3.207(B)(1), a court may enter an ex parte order only when specific facts set out in an affidavit or verified pleading show that irreparable injury, loss, or damage will result from the delay required to effect notice, or that notice itself will precipitate adverse action before an order can be issued. The Michigan Supreme Court amended MCR 3.207 effective September 1, 2025, tightening what an ex parte motion has to plead when minor children are involved.¹

If one spouse refuses to cooperate, the remedy is judicial: the court can order the property sold, assign the home to one party, or appoint someone to sign. Nolo’s overview of the legal steps for selling a marital home is orientation, not a substitute for counsel, and our guide to Selling Situations covers other constrained sales.

How does divorce affect the capital gains exclusion?

It changes the ceiling, and the ceiling moves by $250,000. You may exclude up to $250,000 of gain on your main home, or up to $500,000 if you file a joint return with your spouse. To qualify you generally must have owned the home at least 24 months and lived in it as your main home at least 24 months during the 5 years ending on the sale date, and you’re ineligible if you excluded gain on another home in the prior 2 years.²

Divorce gets two rules that often save the departing spouse. Property transferred to you from a spouse or former spouse incident to divorce generally produces no gain or loss on the transfer itself. And if your former spouse lives in the home under a divorce or separation instrument and uses it as a main home, that occupancy counts toward your own use requirement, which is what lets a spouse who moved out years ago still claim the exclusion. See IRS Publication 523 on the capital gains exclusion and our explainer on capital gains tax exemptions. Run both timing scenarios with a tax professional.

One more change shows up in every buyout file: for divorce or separation agreements executed after December 31, 2018, alimony is not deductible by the payer and not included in the recipient’s income. That matters less on your return than at the underwriting desk.

Sell now, buy out, or co-own: which one fits?

Selling produces a clean split. A buyout keeps one household in place but concentrates the debt on one income. Co-owning past the judgment is underestimated, because it keeps two credit files attached to one loan.

If you co-own, put the exit in writing the way unmarried co-buyers do. Our guide to buying a home with a partner covers the terms, and a seller’s net sheet prices all three columns.

How does a divorce buyout refinance actually work?

It’s a refinance that pays off the existing mortgage and hands the departing spouse their equity share at closing, and the underwriting label matters. Fannie Mae treats a buyout of one owner’s interest by another, for example under a divorce settlement, as a limited cash-out refinance when the property was jointly owned for at least 12 months preceding the disbursement date of the new loan. All parties must sign a written agreement stating the terms of the transfer and how proceeds will be used, and the spouse taking sole ownership may not receive any proceeds.

That label is worth real money, because a true cash-out is capped tightly. FHA caps cash-out at 80% of adjusted value, down from 85% for case numbers assigned on or after September 1, 2019, while its rate-and-term refinance runs to 97.75% on a principal residence owner-occupied the previous 12 months. HUD’s handbook lets equity awarded to a departing title holder ride in that rate-and-term loan when the lender obtains the divorce decree or other legally enforceable equity agreement.

Here’s the arithmetic on a hypothetical Waterford home.³

• 1. Establish value: The home appraises at $340,000. Use a real appraisal, not an agent’s opinion, when the number goes into a settlement.
• 2. Get the real payoff: Order a written payoff statement, not a statement balance. Say it comes back at $196,000.
• 3. Compute net equity: $340,000 minus $196,000 leaves $144,000, before adjustment for deferred maintenance or selling costs.
• 4. Apply the settlement split: A 50/50 division puts $72,000 to the departing spouse. Michigan doesn’t require an even split.
• 5. Size the new loan: $196,000 plus $72,000 is a $268,000 refinance, about 79% of value, and the keeping spouse must qualify for that payment alone.

Qualifying on one income is where these files stall. Fannie Mae requires evidence that alimony, child support or separate maintenance will continue at least three years from the application date, plus documentation of full, regular and timely receipt for the most recent six months. A one-time equalization payment isn’t qualifying income at all. If the home is worth less than the loan, read how to refinance with negative equity before you promise anything, and compare the structure against a straight cash-out refinance.

Can you buy your next home while your name is still on the old loan?

Often, if the judgment assigned that mortgage to your former spouse. According to Fannie Mae’s Selling Guide topic on monthly debt obligations (B3-6-05, dated August 5, 2026), when a court order such as a divorce decree assigns a debt to another party and the creditor does not release you, you carry a contingent liability, and the lender is not required to count that payment in your recurring monthly debts. The same topic says the lender cannot disregard your payment history on that debt before it was assigned, so a late payment made while the case was open still shows up in underwriting.

Support you pay works the other way. Per the same Fannie Mae topic, when a divorce decree, separation agreement or other written legal agreement requires you to pay alimony, child support, equalization payments or separate maintenance, and those payments must continue for more than ten months, they count as part of your recurring monthly debts, and the lender keeps a copy of the decree or order confirming the amount in the loan file.

Here is how the two rules change a debt-to-income ratio. Hypothetical example, not an offer: the spouse who moved out earns $6,000 a month in gross income, pays $700 a month in court-ordered child support, and plans a new housing payment of $1,500. The old mortgage, assigned to the other spouse in the judgment, runs $1,800 a month.

Source for the treatment rules: Fannie Mae Selling Guide B3-6-05, Monthly Debt Obligations, dated August 5, 2026. Other loan programs set their own rules for a debt a court assigned to someone else.

Check your own numbers against our guide to the debt-to-income ratio, and see buying a home as a single parent if children will live with you.

Does a divorce decree remove you from the mortgage?

No, and this misunderstanding can be costly. A divorce judgment binds the two of you to each other; it does not bind your lender, which was never a party to your case. Until the loan is paid off, refinanced, or assumed with a written release of liability, both borrowers stay on the note, late payments land on both credit reports, and the payment can count against both of you on a new application unless the loan program lets the lender leave out a debt the court assigned to your ex.

A quitclaim deed doesn’t fix it. Deeding your interest to your ex changes title while leaving the debt where it was: liability without ownership. Federal law does protect the transfer itself. Under 12 U.S.C. 1701j-3(d), a lender may not exercise a due-on-sale clause on a transfer where the borrower’s spouse or children become an owner, or on a transfer resulting from a decree of dissolution of marriage, a legal separation agreement, or an incidental property settlement agreement. Protection from acceleration is not release from the note.

There are three real exits, and only three:

• Refinance into one name: The keeping spouse qualifies alone and the old note is paid off. See our guide to refinancing to remove a co-signer.
• Assume the loan with a release of liability: Only where the loan permits assumption and the servicer approves. In its December 17, 2024 issue spotlight on the problems homeowners face with mortgage companies after divorce or the death of a loved one, the Consumer Financial Protection Bureau reported homeowners describing servicers that denied requests to release the original borrower, took months or years to process assumption paperwork, or told them to refinance instead. Get the release in writing.
• Sell the home: The payoff clears the note for both of you at closing, which is why a sale is the clean exit when neither spouse qualifies solo. See selling your house.

What rights does the spouse keeping the house have with the servicer?

Federal servicing rules give that spouse a defined status. Regulation X defines a successor in interest at 12 CFR 1024.31 to include a person who becomes an owner through a transfer resulting from a decree of a dissolution of marriage, a legal separation agreement, or an incidental property settlement agreement, by which the spouse of the borrower becomes an owner of the property. Once the servicer confirms that status, 12 CFR 1024.30(d) says a confirmed successor in interest shall be considered a borrower for the escrow rules in section 1024.17 and for that subpart of the servicing rules.

Confirmation is where files stall. According to the CFPB’s issue spotlight on homeowners after divorce or death, servicers must have policies to verify promptly the legal status of successor homeowners under 12 CFR 1024.38(b)(1)(vi), and must tell homeowners which documents they need to prove their ownership interest. The example complaints in that report were received between December 2021 and August 2024. Send the servicer the recorded deed and the judgment of divorce, and read our guides to payments, escrow and servicing and the assumable mortgage route. Confirmed status changes how the servicer must deal with the keeping spouse; it is not a release of the departing spouse.

How do you pin down the payoff and any second lien for the settlement?

Ask the servicer in writing, and a federal rule sets the clock. Under Regulation Z at 12 CFR 1026.36(c)(3) (eCFR text current as of October 27, 2026), the payoff statement shall be sent within a reasonable time, but in no case more than seven business days, after the servicer receives a written request from the consumer or any person acting on the consumer’s behalf.

A home equity loan or line is a separate payoff. According to the Consumer Financial Protection Bureau, home equity loans and home equity lines of credit are common examples of second mortgages, and “second” means that when a home is sold to pay off the debts, that loan is paid off second. Request a payoff on every lien, and see our guides to selling a home with a home equity loan and the home equity line of credit.

Read the note for a prepayment penalty before you subtract the payoff from value. The CFPB explains that a prepayment penalty typically applies only if you pay off the entire mortgage balance, for example because you sold your home or are refinancing, within a specific number of years, usually three or five, and that not all mortgages have one. A sale and a buyout refinance both pay the old loan off, so either path can trigger it.

What has to clear before the house can close?

Everything attached to title, and that list runs longer than either spouse expects. Order a title search before you list, not after you have an offer.

• Voluntary liens: The mortgage, a home equity line, or a land contract balance. Payoff statements expire, so date them to your actual closing.
• Involuntary liens: Delinquent property taxes, judgment liens, support arrearages, and construction liens under Michigan’s Construction Lien Act, MCL 570.1101 et seq. Most must be satisfied or released at closing; they don’t travel to the buyer. See selling a home with a lien.
• Disclosure duty survives the divorce: Michigan’s Seller Disclosure Act, MCL 565.951 et seq., applies to transfers of 1 to 4 residential dwelling units. It exempts transfers made by court order, but no exemption licenses concealing a known defect. With water intrusion history, read selling a home with mold issues before filling out the seller’s disclosure.
• Pre-1978 housing adds a federal layer: Under 42 U.S.C. 4852d, sellers of target housing built before 1978 must give buyers the lead hazard pamphlet, disclose known lead-based paint and hazards, and allow a 10-day opportunity to inspect.
• Commission is negotiable: Since August 17, 2024, offers of buyer-agent compensation cannot be communicated through an MLS, and buyer agents must have a written agreement before touring.

Decide in writing, before closing, how the title company splits the wire. Our guides to choosing a title company and when a seller gets money after closing cover the sequence. Where a death rather than a divorce controls the sale, see selling a home in probate.

What Michigan sellers should know

Michigan divides marital property by equitable distribution, not a 50/50 rule, and the statutory calendar runs longer than most people plan for.

• Equitable does not mean equal: Under MCL 552.19, the court may award such parts of the estate as it deems just and reasonable, and Sparks v Sparks, 440 Mich 141 (1992), sets out nine factors trial courts weigh, including length of the marriage, each party’s contribution, earning ability and conduct. Your half is negotiated, not a default.
• The clock starts at filing: Under MCL 552.9f, no proofs or testimony may be taken until 60 days after the complaint is filed, and 6 months where there are dependent minor children under 18, shortened to 60 days only on a showing of unusual hardship or compelling necessity. MCL 552.9 also requires 180 days of Michigan residence and 10 days in the filing county.
• Nothing freezes automatically: Michigan has no statewide automatic restraining order at filing. If you’re worried the house will be listed, encumbered or emptied, your attorney has to request an ex parte or temporary order under MCR 3.207.
• Transfer tax has a court-order exemption: The State Real Estate Transfer Tax Act exempts, at MCL 207.526(l), a judgment or order of a court of record making or ordering a transfer, unless a specific monetary consideration is specified or ordered by the court for the transfer. That can matter on the interspousal deed in a buyout; a sale to a third-party buyer is fully taxable.

County practice varies more than the statute does. Filing habits and hearing calendars differ across Oakland, Wayne and Macomb, one more reason to have a Michigan real estate attorney reading your file.

How does the house change hands in a Michigan divorce, and what happens to the property tax?

The names on the deed and the mortgage do not settle who gets the house. According to Michigan Legal Help’s guide to dividing property and debt, if there is a title or deed it does not matter whose name is on it: it is still marital property unless it was a gift or inheritance. Its page on real estate and divorce adds that the mortgage only shows who is legally responsible for paying the loan, not who owns the property.

A deed from one spouse to the other is treated differently from a sale for property tax. Michigan’s General Property Tax Act lists “the transfer of property from 1 spouse to the other spouse” among conveyances that are not a transfer of ownership, at MCL 211.27a(7)(a). If your deed will be signed after the judgment, when you are no longer spouses, ask the assessor how it will be treated. A sale to an outside buyer is a transfer. In Michigan, a home’s taxable value is capped while one owner holds it. The year after it sells, that cap comes off and taxable value resets to the state equalized value, which is half of the assessor’s estimate of market value, not automatically half of what you paid. The Michigan Department of Treasury’s page on changes of ownership explains how a conveyance is tested, and the Michigan property tax calculator shows the buyer’s side.

A support award can reach the house as well. Under MCL 552.27, if alimony or an allowance for the support and education of the children is awarded to either party, the amount constitutes a lien upon the real and personal estate of the adverse party, as provided in the support and parenting time enforcement act. Ask the title company to search for it before anyone quotes net proceeds.

How many Michigan divorces are there, and how long does a case take?

Michigan records roughly 20,000 to 23,000 divorces and annulments a year. According to the state’s vital records table of divorces and annulments, Michigan counted 20,812 in 2022 and 20,491 in 2023, down from 26,148 in 2019. Nationally, the CDC’s National Center for Health Statistics reported 672,502 divorces in 2023, a rate of 2.4 per 1,000 population, from 45 reporting states and the District of Columbia (provisional figures).

Source: Michigan vital records statistics, Number of Divorces and Annulments, Michigan and United States Occurrences, Selected Years 1900 to 2023.

The courts’ own time standards show why a sale or a buyout can wait months for a judgment. The Michigan Judicial Institute’s divorce proceeding checklist (last updated November 8, 2022) repeats the caseflow guidelines of Administrative Order No. 2013-12:

Source: Michigan Judicial Institute, Divorce Proceeding Checklist, last updated November 8, 2022, citing Administrative Order No. 2013-12.

FAQ: Selling a home during a divorce

Here are answers to common questions about selling a home during a divorce.

Can I sell the house without my spouse’s consent during a divorce?

Generally no, if both spouses are on the title. Both signatures are needed to list and to convey, and in states with automatic restraining orders a filing alone can bar transfers without a written agreement or court order. If one spouse won’t cooperate, the other can ask the court to order the sale or award the home to one party. Our guide to the finances of selling covers the ordinary mechanics.

Should I sell the home before or after the divorce is finalized?

It depends on your filing status and your children. Selling while you can still file a joint return preserves a $500,000 exclusion instead of a $250,000 one, and it lets you split a known number rather than argue about future value. Selling after can make sense when the market is improving, when children need stability through the school year, or when a settlement already assigns the home. Model both with a seller’s net sheet.

How is a divorce home buyout calculated?

Start with a current appraised value, subtract the mortgage payoff and any liens to reach net equity, then divide it according to your settlement, which is often but not always 50/50. The buying spouse funds the payment through a refinance, and when you’ve jointly owned the property at least 12 months that refinance is typically a limited cash-out. Deferred maintenance and selling costs are often negotiated into the equity figure, so order a full appraisal.

Does removing my name from the deed remove me from the mortgage?

No. A quitclaim deed transfers ownership but leaves the mortgage obligation intact, so late payments still hit your credit and the payment can still count against you on a new loan. The only reliable fixes are a refinance into the keeping spouse’s name alone, an assumption with a written release of liability where the loan permits one, or selling. See refinancing to remove a co-signer.

Who keeps the principal residence exemption after a divorce in Michigan?

An owner who keeps living in the home can keep claiming it, even after the other spouse moves out. Michigan Treasury says it covers up to 18 mills of school operating tax, so settle who holds it in the judgment. Under MCL 211.7cc, a couple filing a joint Michigan return gets only one. If the house sells or nobody on the deed lives there, an owner files a rescission with the local tax collecting unit within 90 days.

Is the buyout payment taxable to the spouse who moves out?

It turns on timing. IRS Publication 504 treats a transfer to a former spouse as incident to divorce if it occurs within 1 year after the marriage ends, or if it is made under the divorce or separation instrument within 6 years. The spouse who receives the home takes the transferor’s adjusted basis, so the untaxed gain waits for the eventual sale. Ask a tax professional to read the transfer terms in your judgment.

Do I need a new deed after a Michigan divorce?

Usually yes. Michigan Legal Help says the spouse not keeping the real estate must sign a quitclaim deed, filed with the County Register of Deeds to transfer ownership. Oakland County, for example, charges a $30 recording fee that includes the $4 state survey and remonumentation fee (fees effective October 1, 2016), per its Register of Deeds. Separately, under MCL 552.401, a final decree awarding one spouse property owned by the other works like a quitclaim deed.

What happens if the house is worth less than the mortgage in a divorce?

A buyout refinance may be off the table. Michigan Legal Help notes that refinancing might not be possible if the property is worth less than the amount of the mortgage, and that if a judge orders a sale and you owe more than the home sells for, the debt will be divided between you. Get a written payoff and a current appraisal before either attorney drafts the property terms.

The bottom line on selling a home during a divorce

Selling a home during a divorce is an ordinary transaction wrapped in a court calendar and a tax deadline. Both titled spouses have to agree or a judge has to order it. Filing status sets the ceiling on your gain exclusion at $500,000 jointly versus $250,000 single, with 24 months of ownership and 24 months of use in the 5 years before the sale. A buyout is a refinance, not a signature, and it only works if one of you qualifies alone. And a divorce decree never removes anyone from a mortgage note; only a payoff, a refinance, or an assumption with a written release of liability does that.

If you’re ready to find out whether a buyout is realistic on one income, talk to Align Lending before you sign the settlement. We’ll shop your scenario across our lender network and show you the numbers side by side, including bridge financing if you must close on a next home first. Call 248-506-5727 or start online. For the divorce itself, work with a Michigan real estate attorney; for free neutral help, HUD funds HUD-approved housing counseling.

Footnotes:

1. This article is general information about divorce procedure and property division, not legal advice. Court rules, automatic orders and local practice vary by state and by county circuit court, and the orders entered in your case control. Consult a Michigan real estate attorney before listing, signing, or conveying a marital home. Return to text.

2. This is general information, not tax advice. Eligibility for the home sale gain exclusion, basis, holding periods, deductible selling costs and filing status all depend on your individual circumstances and on the terms of your divorce or separation instrument. Consult a qualified tax professional about your situation. Return to text.

3. Example figures are hypothetical and for educational purposes only. They do not constitute an advertisement of credit terms or a rate quote under federal or state lending laws. Your appraised value, payoff amount, equity split, loan amount, rate and terms will depend on your application, your judgment of divorce and market conditions. Return to text.

Sources: home sale gain exclusion of up to $250,000, or up to $500,000 on a joint return, the ownership and use tests of 24 months within the 5 years ending on the date of sale, and the 2-year restriction on excluding gain from a prior sale, IRS Topic No. 701 and IRS Publication 523. No gain or loss on a home transferred from a spouse or former spouse incident to divorce, and use of the home by a former spouse under a divorce or separation instrument counting toward the use test, IRS Publication 523. Alimony under divorce or separation agreements executed after December 31, 2018 not deductible by the payer and not includible in the recipient’s income, IRS Publication 504. Buyout of a co-owner’s interest as a result of a divorce settlement treated as a limited cash-out refinance where the property was jointly owned for at least 12 months preceding the disbursement date, the requirement that all parties sign a written agreement stating the terms of the transfer and the disposition of proceeds, and the prohibition on the acquiring borrower receiving proceeds, Fannie Mae Selling Guide B2-1.3-02, Limited Cash-Out Refinance Transactions. Continuance of alimony, child support or separate maintenance income for at least three years from the application date (topic dated October 7, 2026), documentation of full, regular and timely receipt for the most recent six months, and exclusion of lump-sum equalization payments as qualifying income, Fannie Mae Selling Guide B3-3.4-02. Reduction of the maximum LTV and CLTV on FHA cash-out refinance mortgages from 85 percent to 80 percent of the Adjusted Value, effective for case numbers assigned on or after September 1, 2019, HUD Mortgagee Letter 2019-11, amending Handbook 4000.1 section II.A.8.d.v(B)(1). Maximum LTV of 97.75 percent on an FHA rate-and-term refinance for a principal residence owner-occupied for the previous 12 months, and inclusion of equity awarded to a title holder where the mortgagee obtains the divorce decree, settlement agreement or other legally enforceable equity agreement, HUD Handbook 4000.1. Exemption of a transfer where the spouse or children of the borrower become an owner, and of a transfer resulting from a decree of dissolution of marriage, legal separation agreement or incidental property settlement agreement, from due-on-sale enforcement, 12 U.S.C. 1701j-3(d). Homeowner reports of servicers denying release of the original borrower, delaying assumption paperwork, and directing borrowers to refinance after divorce or death, Consumer Financial Protection Bureau, “Issue Spotlight: Homeowners face problems with mortgage companies after divorce or death of a loved one,” December 17, 2024. Michigan property division on a just and reasonable basis, MCL 552.19; the nine property-division factors, Sparks v Sparks, 440 Mich 141 (1992). Michigan waiting periods of 60 days, and 6 months where there are dependent minor children under 18, with a hardship or compelling necessity exception, MCL 552.9f; 180-day state and 10-day county residence requirements, MCL 552.9; Michigan Judicial Institute Divorce Proceeding Checklist. Standard for entry of an ex parte order on a showing of irreparable injury, loss, or damage from the delay required to effect notice, or that notice itself will precipitate adverse action before an order can be issued, MCR 3.207(B)(1); amendment of MCR 3.207 and MCR 3.210 effective September 1, 2025, Michigan Supreme Court ADM File No. 2021-27, order entered June 18, 2025. Michigan Seller Disclosure Act coverage of transfers of 1 to 4 residential dwelling units and exemption for transfers by court order, MCL 565.951 et seq. Michigan Construction Lien Act, MCL 570.1101 et seq. Exemption of a judgment or order of a court of record making or ordering a transfer, unless a specific monetary consideration is specified or ordered by the court, State Real Estate Transfer Tax Act, 1993 PA 330, MCL 207.526(l). Lead hazard pamphlet, disclosure of known lead-based paint and hazards, and the 10-day inspection opportunity for pre-1978 target housing, 42 U.S.C. 4852d. Prohibition on communicating offers of compensation through an MLS and the written buyer agreement requirement effective August 17, 2024, National Association of REALTORS®.

This article is for informational purposes only and is not intended to provide legal, financial, or tax advice. Divorce procedure, property division, court orders, statutory deadlines and tax rules change and vary by state and by county circuit court; confirm your figures, your deadlines and your obligations with a Michigan real estate attorney and a qualified tax professional. Figures shown are illustrative, are not a rate quote or an offer of credit, and are subject to change. Align Lending is an independent Michigan mortgage broker, NMLS #2041154. Align Lending is not acting on behalf of or at the direction of FHA or HUD.

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