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
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