Selling a House During a Divorce in California

By Matthew Martinez, Founder, CEO & Managing Broker, Diamond Real Estate Group. California DRE #01869679.

You can sell a house during a California divorce, but usually only with your spouse’s written agreement or a court order. Once a divorce case starts, the standard restraining orders on the family law summons (form FL-110) bar both spouses from selling, transferring or borrowing against property without written consent or a court order. And under Family Code section 1102, both spouses generally have to sign to sell community real property. Most couples either sell and split the proceeds or have one spouse buy out the other, with the terms set in a written agreement or court order.

This guide explains the community property basics, who has to sign, how the restraining orders work, the two main options, how escrow handles a divorce sale, and the tax rules to raise with your CPA. It isn’t legal advice. Every divorce is different, so work with a California family law attorney before you list or sign anything.

Community property basics

California is a community property state. Under Family Code section 760, property a married person acquires during the marriage while living in California is community property, unless a statute says otherwise. Section 770 defines separate property: what you owned before marriage, gifts and inheritances you received during it, and the rents and profits from that separate property.

When a marriage ends, Family Code section 2550 tells the court to divide the community estate equally, unless the spouses agree otherwise in writing or by oral stipulation in open court.

A house often mixes the two. One spouse may have bought it before marriage and then paid the mortgage with community income, or used separate money for a down payment during the marriage. Sorting out each side’s share is a legal question for your attorneys. How title reads on the deed is only part of the picture. Our guide on how to hold title in California explains the common vesting options.

Who must sign to sell

Under Family Code section 1102, either spouse can manage community real property, but both spouses must sign to sell, convey or encumber it, or to lease it for more than a year. That applies whether you’re divorcing or not.

The section also has a time limit that matters to buyers and title insurers. If only one spouse signs and title is in that spouse’s name alone, the other spouse generally has one year after the deed is recorded to sue to void it. In practice, this is why title companies usually ask both spouses to sign, even when only one is on title. See our preliminary title report guide for what title reviews before closing.

The automatic restraining orders on the summons (FL-110)

Every California divorce, legal separation or nullity summons carries standard family law restraining orders, often called ATROs. They’re set by Family Code section 2040 and printed on page 2 of the Judicial Council’s FL-110 Summons.

What the property order says, in plain terms:

• Neither spouse (or domestic partner) may transfer, encumber, hypothecate, conceal or otherwise dispose of any property, whether community, quasi-community or separate, without the other’s written consent or a court order.
• The exceptions are the usual course of business and the necessities of life.
• Spouses must give at least five business days’ notice before any extraordinary expenditure and account to the court for it.
• Either spouse may still use property to pay a lawyer or court costs.
• Spouses can’t create or change nonprobate transfers, such as a transfer-on-death deed or revocable trust, in a way that affects how property passes, without consent or a court order.

FL-110 says the orders stay in effect until the case is dismissed, judgment is entered or the court makes other orders.

For a home sale, that means listing and selling during the case should rest on a signed written agreement between the spouses or a court order. Ask your attorneys to put it in writing before you sign a listing agreement, and give a copy to escrow.

Your options for the house

Legal sources: Fam. Code §2550 (equal division unless agreed), §1102 (both sign), §2040 (restraining orders). The practical items in the right column are common planning points, not legal requirements.

Selling to a third party

If you sell, agree early on decisions that often cause friction: which agent to hire, the list price, how you’ll respond to offers, whether to do repairs, and who stays in the home. A neutral starting point helps. Many couples ask for a comparative market analysis or an appraisal, and our guide on how to price a home in California explains how each works. A seller net sheet shows what’s likely left after the loan payoff and costs.

The listing agreement should be signed by both owners. Ask the agent how they’ll share information with each of you, for example by copying both spouses or both attorneys on every offer.

Buyout

In a buyout, one spouse keeps the house. Usually the spouse keeping it refinances to remove the other from the loan and pay out their share, then the other spouse signs a deed. Two state tax rules can help here:

• Property tax. Revenue and Taxation Code section 63 says transfers to a spouse or former spouse under a property settlement agreement or a decree of dissolution or legal separation aren’t a change in ownership, so they shouldn’t trigger reassessment by themselves. Confirm the filing with your county assessor. Our Prop 13 guide explains reassessment.
• Documentary transfer tax. Section 11927 exempts deeds dividing community or quasi-community property between spouses when required by a dissolution, legal separation or nullity judgment, another Family Code order, or a written agreement made in contemplation of one. The deed must include a signed recital claiming the exemption. City transfer taxes may have their own rules; see our California transfer tax guide.

How title and escrow handle a divorce sale

These are common escrow and title practices, not statutes, and they vary by company:

• Both spouses sign. Title usually requires both signatures, and may ask for a copy of the agreement or court order authorizing the sale.
• Proceeds held or split per instructions. Escrow follows joint written instructions. If spouses don’t agree on the split, attorneys sometimes have proceeds held in a blocked account or trust account until the court rules.
• Separate communication. Escrow can send documents to each spouse separately and copy attorneys.
• Signing apart. Spouses can sign at different times and places with separate notaries.

Tax notes for divorcing sellers

Federal tax rules come from IRS Publication 523, Selling Your Home (2025). Key points for divorcing spouses:

• The exclusion. If you meet the tests, you can exclude up to $250,000 of gain, or $500,000 if married filing jointly. Generally you must have owned the home and lived in it as your main home for at least 24 months of the 5 years before the sale.
• Joint filers. For the $500,000 limit on a joint return, both spouses must meet the residence and look-back tests, and at least one must meet the ownership test. If you don’t qualify for $500,000, each spouse may qualify for $250,000 separately.
• If your ex lives in the home. You can count the time your spouse or former spouse lives there under a divorce or separation instrument as your own use, as long as you’re still an owner and it’s their main home.
• Transfers between spouses. A transfer of the home to a spouse or ex-spouse as part of a divorce settlement generally results in no gain or loss. If you received the home that way, your ex’s ownership time counts toward yours, but you still have to meet the residence test yourself.

The IRS amounts and rules can change. Check the current Publication 523. California state income tax has its own rules, so ask your CPA about the state side too. For the bigger picture, read our guide to capital gains on a California home sale, and talk to a CPA before you choose sale or buyout.

Work with the right professionals

A divorce sale goes best with a family law attorney for each spouse (or a mediator), a CPA, and an agent who will communicate evenly with both sides. For practical tips on the sale itself, see our earlier post on selling a home after divorce in the Bay Area. When you’re ready, our selling services page explains how we work, or request a home valuation as a neutral starting point.

Questions people ask

Can my spouse sell the house without my permission in California?

Generally no. Family Code section 1102 requires both spouses to sign to sell community real property. During a divorce case, the FL-110 restraining orders also bar either spouse from selling property without written consent or a court order.

Can I list the house before the divorce is final?

Yes, if your spouse agrees in writing or the court orders it. The restraining orders on the summons allow transfers with written consent or a court order. Ask your attorneys to document the terms before you list.

What if my spouse refuses to sell?

Your attorney can ask the family court for orders about the property. A judge decides how the community estate is divided under Family Code section 2550.

Is the house automatically split 50/50?

The community estate is divided equally unless spouses agree otherwise in writing or in open court. Separate property contributions can change how much of the home counts as community property.

Does a buyout trigger property tax reassessment?

Revenue and Taxation Code section 63 excludes transfers to a spouse or former spouse under a property settlement agreement or dissolution decree from change in ownership. File what your county assessor requires.

Do we each get the $250,000 capital gains exclusion?

Possibly. IRS Publication 523 explains when a couple qualifies for $500,000 on a joint return, and when each spouse may qualify for $250,000 separately. Ask a CPA about your situation.

Do the restraining orders apply to separate property too?

Yes. The FL-110 property order covers community, quasi-community and separate property.

Sources & notes

1. Family Code §760, §770, §1102, §2040, §2550. Official text: leginfo §1102, leginfo §2040. Reviewed through a public statute mirror.
2. Judicial Council form FL-110, Summons (Family Law), standard restraining orders on page 2 (Rev. January 1, 2015 version reviewed; check for a newer revision).
3. Revenue & Taxation Code §63 and §11927. Official text: leginfo §63.
4. IRS Publication 523, Selling Your Home (2025).

Escrow and title practices described are common practice, not law. Registered domestic partners: FL-110’s orders cover domestic partners too; ask your attorney how the other rules apply to you.

General information, not legal, tax or lending advice. Updated November 2026. Primary sources are linked in this guide.

Related: Selling a home after divorce · Capital gains on a home sale · Seller net sheet