The cases are numerous in holding that a court may not order the sale of the marital residence, or for that matter, other marital property until the conclusion of the case. The courts lack the authority to do so. However, if the parties enter into an agreement to do so, this rule will not apply. The agreement to sell is actually a binding contract between the parties, and it will be enforced by the court.
Once the parties have consented to the sale of the marital residence, while the divorce case is pending trial, neither the husband nor the wife can prevent the sale because they changed their minds or have any other tangible reason to go back on the agreement. As the court put it, "… once the parties have consented…that consent cannot be unilaterally withdrawn."
The court went on to explain, " …a stipulation of settlement in a matrimonial action is a contract subject to principles of contract interpretation…where the stipulation is clear and unambiguous the intent of the parties must be gleaned from the four corners of the instrument, and not from extrinsic evidence."
The stipulation in this case Dimond v. Dimond, 2013 NY Slip Op 02532, was clear on its fact that the home should be sold, and had no ambiguity. As such, the court below was correct in compelling the wife to cooperate with her husband in the sale.
There was no provision in the agreement that a party could not purchase the residence. Therefore, the fact that the husband was doing so was not prohibited, and this was inferable so because the sale was for the fair market value of the home.
The rule to remember is that once you sign an agreement, you cannot get out of it, especially when the court "so orders" the terms of the agreement.
