The 19th century’s George C. Parker makes people chuckle today as the guy who “sold” the Brooklyn Bridge, the Statue of Liberty, and other public New York City landmarks. Today, though, real estate scams are no laughing matter, as Arlington, Virginia residents Pete Giannino and his wife, Kate Colwell, can tell you. Their home was illegally listed for rent without their knowledge. During separation and divorce, could a spouse sell the marital home without the other spouse knowing?

Jump to a Section

Types of Property in Divorce

In Virginia separation and divorce proceedings, your attorney and your spouse’s attorney have to classify three types of property for equitable distribution. The spoils of your marriage are returned to each of you based on your contributions to the marriage. The three classes of property are:

  • Separate property — Under Code of Virginia § 20-107.3, “all property, real and personal, acquired by either party before the marriage; all property acquired during the marriage by bequest, devise, descent, survivorship or gift from a source other than the other party; all property acquired during the marriage in exchange for or from the proceeds of sale of separate property, provided that such property acquired during the marriage is maintained as separate property; and that part of any property classified as separate”
  • Marital property — Under the same Code, “all property titled in the names of both parties, whether as joint tenants, tenants by the entirety or otherwise;… that part of any property classified as marital;… all other property acquired by each party during the marriage which is not separate property as defined above; … For purposes of this section marital property is presumed to be jointly owned unless there is a deed, title or other clear indicia that it is not jointly owned”
  • Hybrid or Commingled property — Still under § 20-107.3, “When marital property and separate property are commingled by contributing one category of property to another, resulting in the loss of identity of the contributed property, the classification of the contributed property shall be transmuted to the category of property receiving the contribution …”

You and your attorney need to determine if the marital home is separate, marital, or commingled property.

One of the three classes is easy-peasey: if you own the home outright, your departing spouse has no legal say in its sale. How do you know you own the home? Your name and only your name is on the title.

The other two classes of property are a bit trickier to navigate.

Can I Sell Marital Property?

You are unlikely to hold a title or deed to the Brooklyn Bridge or to a house you do not own (sorry, Pete and Kate). You are likely to hold a title or deed to a Virginia home you are buying back every month from a mortgage company or that you own outright.

Let’s review some basics:

  • Title — The title to your house and property makes you its legal owner and gives you the right to sell it; one name on the title means “sole ownership,” while two names means “joint tenancy”
  • Deed — A deed is a legal document transferring property ownership from a seller to a buyer; when you bought your house, the previous owner’s settlement agent provided a deed that showed the seller deeding the house to you, the buyer; that deed is recorded in each Virginia county’s government offices

If you and your spouse are both named on the house title, you both have legal rights to the property. That single document is enough to establish the house as marital property. That single document also means you cannot sell it without your spouse’s written approval.

What If I Inherited my House and Want to Sell It?

In most cases, a house inherited by one of two parties remains separate property, even if the inheritance occurred after the marriage date. If, though, the two of you spend a lot of money to remodel or rebuild the inherited property, it could become commingled property.

This applies to a house given to one spouse (lucky, lucky spouse!), as with the bride’s parents “generously” giving her a house … across the street from them. While such an arrangement probably hastens a divorce, the house will usually stay separate property (the bride’s) unless you put a lot of your own money into refurbishing it.

Can I Sell the House without My Wife’s Signature?

So does my spouse have to sign in order for me to sell the house? In the case of an established separate property, she does not need to sign anything if you own the home outright, as shown by your title and, often, a mortgage company’s paperwork.

But in the other two cases, what do you want her to sign? A deed, a property settlement agreement, or a sales contract?

Assuming the house is marital or commingled property, you can:

  • Have your attorney and her attorney draft a property settlement agreement you both sign that stipulates the house will be sold and the profit will be equitably distributed to you both, THEN
  • Connect with a real estate agent to sell the house on behalf of you both and attend the settlement, with both of you signing the deed from you as sellers to the buyer, OR
  • Ask your spouse to sign a real estate sales contract in which she sells you her equitable share of the marital home

In two out of the three classes of property, your spouse must be a willing, aware partner in the process. You cannot sell the marital home out from under her.

My Wife is Refusing to Sell the House

What if you and your spouse cannot work out the sale of the house? Like a kids’ cartoon, you can always turn to the powers of some character in a robe. We don’t mean a villain; we mean the Circuit Court judge overseeing your separation and divorce.

If both attorneys and both spouses cannot find a reasonable solution, a Virginia court will dispassionately decide for you. You may not like the results, so consider enlisting an experienced, knowledgeable family law attorney.

Your attorney may have novel approaches to the problem, like swapping other marital property (an RV, a vacation timeshare, a boat) for the house, or continuing co-ownership but renting it out for income.

The Firm For Men’s focus is on helping Virginia’s men with tricky questions like marital and separate property. We can help you with your separation and divorce, but only if you contact us today or telephone our Virginia Beach office at (757) 383-9184. And yes, we have a real lease on the place. (Again, sorry, Pete and Kate.)