This is a question that is very fact and judge dependent. The judge has the authority to preserve the marital assets so if you are not paying the mortgage on your home and are facing foreclosure, you could be required to sell the house. However, many judges take the position that the marital home should not be sold on the basis of a motion unless there is a danger to the house being lost in foreclosure or there is a risk of damage to the marital estate. You should definitely hire an attorney to represent your interests both in the motion hearing and at the trial. Many law firms, such as mine, offer a free consultation to see what would be in your best interests.
Yes, you can oppose husband's motion. Usually, there has to be a compelling reason to sell the house prior to trial, but there was once a judge down my way that often liquidated everything from the beginning, so there is no 100% of the time answer here. Are you sure husband is keeping up his required payments? Perhaps he has troubles you don't know about yet. Fight back on this one.
To questioners from West Virginia & New York: Although I am licensed to practice in your state, I practice on a day-to-day basis in Massachusetts. I answer questions in your state in areas of the law in which I practice, and in which I feel comfortable trying to offer you assistance based on my knowledge of specific statutes in your state and/or general principles applicable in all states. It is always best, however, to work with attorneys and court personnel in your own area to deal with specific problems and factual situations.
To 'quash' a Motion is to oppose it on the basis that there is no legal basis for asking for the sale of the house. Because there is a divorce proceeding pending, and _if_ you and/or he are the only owners of the house, there is at least a legal basis for the Motion.
I think what you mean is whether it is possible to successfully oppose his Motion. It will depend very specifically upon the facts of your marriage, both of your current economic circumstances, and child-related custody issues. There may also be tactical steps one can take to preclude a sale. I strongly suggest that you get a full consultation to get an answer to your question; many lawyers will provide free or low-cost consultations. You should be sure to bring to any consultation copies of the past and current orders, any financial statements filed during the divorce, any pretrial memoranda, any valuations of the house, and (of course) a copy of the Motion. There are deadlines involved in cross-motions and oppositions, so do not delay.
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There are many facts that go into the determination of issues. What stage of the divorce are you in? Are there children involved? Do they live in the home? It is unlikely that any Judge will determine the issue of the sale of a home until trial, absent very compelling facts. If this is a nasty divorce, you should be represented by counsel. this may simply be a tactic to harass you. The motion needs to be vigorously opposed. It cannot be quashed.
Attorney Lloyd Godson
If you have grounds, and oppose this, then file an opposition
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You really should not be forced to sell off assets during the middle of a divorce. This is even part of the Rule 11 restraining order each party impliedly agrees to from the beginning. So I would think the attorney is violating that rule and realistically the court should not be dividing property at that time.
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