The family court has the authority to make determinations regarding a marital home even prior to or subsequent to a divorce decree. First, the court can grant one of the parties exclusive possession of the home while the divorce is pending under Section 3502 of the Divorce Code. Case law, however, has indicated that an award for exclusive possession should not be given lightly and the party requesting it has the burden of proving its necessity. Section 3323 gives the court general equity powers to issue any order necessary to protect the interests of the parties or as justice requires. This can include an order mandating a party to pay the mortgage on time, forcing the home to be sold if neither party can afford it, and even decisions on which realtor should be used or what the listing price should be.
Section 3105(a) discusses the court’s obligation to enforce agreements between the parties. Accordingly, if an agreement has been made regarding the marital residence and one party refuses to comply, there is the option of taking the issue before the court for enforcement. Again, this may result in an order for the home to be listed for sale, for a certain realtor to be chosen and/or for a certain listing price. Deductions in the listing price can also be requested and awarded. The best agreements will contemplate issues which may arise and set forth contingency plans. For example, a party can specify at the outset how reductions will be made to the listing price if the home has not sold within a certain time frame. It is also useful to explain how parties will be compensated, if at all, for any pricey expenses/repairs above the costs of regular maintenance to ensure the home will sell.