Complete Guide to Selling a Home After Divorce

Is it mandatory to sell the home after a divorce?

It is not always mandatory to sell the home after a separation. However, it can become the most practical option when no agreement is reached between the parties or when neither spouse wishes to keep the property. Below, we explore the main alternatives:

• Transfer to one of the spouses: One of the parties may keep the property, financially compensating the other. This operation is known as dissolution of co-ownership and may have significant tax benefits.
• Renting the property: If neither party wants to keep the property, one option is to rent it and share the profits according to ownership percentage.
• Maintaining joint ownership: Some ex-spouses choose to keep the co-ownership of the property and sell it later, when market conditions are more favorable or the family situation allows.
• Exclusive use by one of the spouses: If there are minor children, the judge usually grants use of the home to the custodial parent, postponing the sale until the children reach adulthood or become independent.

The matrimonial property regime determines the process

The matrimonial property regime under which the marriage was contracted directly affects how the sale of the property is managed. These are the three main cases:

Community of property

In this regime, all assets acquired during the marriage belong equally to both spouses. If the property was purchased during the marriage under this regime:

• The property is divided 50/50, even if only one spouse contributed financially.
• To sell, both spouses must agree.
• If there is no agreement, options include:
  • Dissolution of co-ownership, where one buys out the other’s share.
  • Judicial division of common property, where a judge may order the sale, even through auction.

It is important to note that even if one spouse does not live in the property, they still retain rights over it. This type of conflict is common when one ex-spouse keeps the home as their main residence and the other wants to sell.

Separation of property

In this case, each spouse retains individual ownership of what they acquired independently. If the property is solely in one name, that spouse can sell it without authorization from the other (unless there are children or prior agreements). If it is jointly owned:

• An agreement is required to sell.
• Profits are distributed according to the ownership percentage stated in the deed.

This regime allows greater flexibility when deciding what to do with the property but can also cause conflicts if ownership percentages are not clearly defined.

Common-law partnerships

Common-law couples are not subject to a matrimonial property regime, but if they purchased the home jointly:

• Both must sign the sale.
• The money is divided according to the percentage stated in the deeds.
• No dissolution of a property regime is required.

Additionally, if the property was the family home, some regions have specific regulations that protect the partner with dependent children or in a vulnerable situation.

Other key aspects before selling a property after divorce

What documentation is required to sell the property?

Before starting the selling process, it is essential to have all documents ready, as they will be requested by notaries, registries, buyers, or professionals involved in the transaction. Basic documentation includes:

• Original purchase deed (recommended).
• Updated simple note from the Land Registry.
• Certificate of encumbrances or mortgage (if applicable).
• IBI receipts (current year plus 4 years or certificate of municipal tax compliance).
• Community certificate confirming payments are up to date.
• Energy performance certificate (legally required to sell).
• Occupancy certificate (depending on the region).
• Zero-debt certificate (in case of a cancelled mortgage).
• Divorce decree and settlement agreement (if it affects property use).
• ID or residence card of the owners.

It is advisable to prepare all this documentation in advance to avoid delays during the most critical phases of the process.

What expenses must the owner cover when selling?

The main taxes and expenses related to the sale are:

• Personal Income Tax (IRPF): payable if there is a capital gain. The taxable base is calculated by subtracting the acquisition value, related expenses, and improvements from the selling price. There may be exemptions if reinvested in a new primary residence or in the case of people over 65.
• Municipal capital gains tax (Plusvalía): Levied on the increase in land value.
• Mortgage cancellation costs: If the property has a mortgage, cancellation fees at the registry, notary fees, and possible early repayment bank fees must be covered.
• Real estate agency fees: If a professional real estate agency is hired to manage the sale, the owner is responsible for paying their fees.

FAQs: Frequently Asked Questions

Can I sell the house without my ex’s consent?

No, unless you are the sole owner of the property. If both are registered as owners, the signature and consent of both are required to proceed with the sale. If no agreement is reached, it is possible to initiate a judicial division of common property.

What if my ex refuses to sell?

There are three legal avenues: dissolution of co-ownership (one buys the other’s share), sale of the undivided share (selling your portion to a third party), or judicial division of common property (the judge orders the sale, usually through public auction).

How is the money from the sale divided?

It depends on the matrimonial property regime:

• In community of property, divided 50/50.
• In separation of property, divided according to registered ownership.
• In common-law partnerships, divided according to the percentage stated in the deeds.

Can the property be sold if it has a mortgage?

Yes, but the mortgage must be settled at the time of the sale with the proceeds. Alternatively, the buyer may assume the mortgage, or one of the ex-spouses may take over the loan individually with bank approval.

What happens if there are minor children and the property is to be sold?

Judicial authorization is required. The judge will assess whether the sale negatively affects the well-being of the children and whether the custodial parent has an adequate housing alternative.

Who pays the municipal capital gains tax?

This tax is paid to the City Council and may be covered by one or both owners. Legally, it is joint, meaning if one does not pay, the council may demand the full amount from the other.

What if the house was sold before the divorce was finalized?

The proceeds form part of the marital estate. Its distribution depends on the divorce settlement agreement or the court ruling in the divorce judgment.

Can I keep the house if it’s not in my name?

Only by agreement with the owner or by judicial decision if you have custody of the children and the judge considers you need use of the property. However, this does not automatically make you the owner.

What happens if the mortgage is not paid after divorce?

The bank can claim the debt from both, regardless of who lives in the property. Therefore, it is crucial to renegotiate the mortgage or settle it with the sale of the property.

Conclusion

Selling a home after a divorce can be an emotionally challenging and legally complex experience. However, with the right information, professional support, and a collaborative approach, this process can become a practical solution to close one chapter and begin another with clarity and security.

Do not make hasty decisions. Each case is unique, and having specialized legal and real estate advice is essential to avoid costly mistakes and protect both your assets and emotional well-being.

Establishing solid agreements, understanding each party’s rights and obligations, anticipating possible conflicts, and knowing the most effective legal avenues are essential tools for achieving a successful sale.

Alfa Casa Real Estate helps you no matter your case

If you are in the Costa Brava, going through or have recently gone through a divorce, and need to sell your property, at Alfa Casa Real Estate —based in Lloret de Mar— we offer close support and practical solutions tailored to your situation.

We make sure the sale is quick, clear, and at the best possible price, so you can move forward without complications.

Request a free property valuation or learn more about our real estate services to see how we can help you.