In California, family courts prioritize the well-being of children during divorce proceedings. One legal mechanism to support this is the Deferred Sale of Home Order, commonly known as a “Duke Order.” This provision allows the custodial parent and children to remain in the family home temporarily, deferring its sale to minimize disruption to the children’s lives.
What Is a Deferred Sale of Home Order?
A Deferred Sale of Home Order permits a delay in selling the family residence, granting the custodial parent exclusive use and possession of the home for a specified period. This arrangement aims to reduce the adverse impact of divorce or legal separation on the child’s welfare. The term “Duke Order” originates from the 1980 case In re Marriage of Duke, which established the legal precedent for such orders.
Legal Framework
California Family Code Sections 3800–3810 govern Deferred Sale of Home Orders. Under these statutes, a court may issue such an order if it determines that:
- The order is necessary to minimize the adverse impact of the dissolution of marriage or legal separation on the child.
- It is economically feasible to maintain the home during the deferral period, considering mortgage payments, property taxes, insurance, and maintenance costs.The custodial parent must demonstrate the ability to cover these expenses, potentially through income, child support, or spousal support
Factors Considered by the Court
When evaluating a request for a Deferred Sale of Home Order, the court considers several factors to determine if the arrangement serves the child’s best interests:
- Duration of Residence: How long the child has lived in the home.
- Educational Stability: The child’s current grade level and school placement.
- Proximity to Services: Accessibility of the home to the child’s school, childcare, and other essential services.
- Special Needs: Whether the home has been modified to accommodate any physical disabilities of the child.
- Emotional Impact: The potential emotional detriment to the child from relocating.
These considerations help the court assess whether maintaining the child’s current living environment outweighs the benefits of selling the home immediately.
Duration and Termination of the Order
The Deferred Sale of Home Order specifies a deferral period, which typically lasts until the child reaches a certain age, graduates from high school, or another significant milestone occurs. At the end of this period, the home is usually sold, and the proceeds are divided according to the divorce settlement.
Financial and Legal Implications
While the custodial parent retains exclusive use of the home during the deferral period, both parties maintain joint ownership. This arrangement requires clear agreements on responsibilities such as mortgage payments, property taxes, insurance, and maintenance costs. It’s advisable for both parties to outline these responsibilities in the divorce settlement to prevent future disputes.
Conclusion
Deferred Sale of Home Orders offer a legal avenue to prioritize children’s stability during the upheaval of divorce. By allowing children to remain in their familiar environment, these orders aim to mitigate the emotional and psychological impact of familial changes. However, they also necessitate careful financial planning and clear communication between ex-spouses. Consulting with a family law attorney can provide guidance tailored to individual circumstances.
