· By Juan Murray
Selling Your House During a Divorce in Massachusetts
In Massachusetts, the marital home is divided under M.G.L. c.208 §34, which directs the judge to weigh a list of factors, including the length of the marriage, each spouse's income and needs, and contributions to the marital estate, to reach an equitable outcome that is not automatically a 50/50 split. Spouses can agree to sell, have one buy out the other, or defer a sale; if they can't agree, the judge decides, which can include ordering a sale. On taxes, a couple filing jointly can exclude up to $500,000 of gain if both meet the use test, and each spouse who qualifies on their own can exclude up to $250,000, so the timing of the sale matters most when only one spouse still meets the tests.
What happens to the house when you get divorced in Massachusetts?
You and your spouse can sell it, have one spouse buy out the other, or defer the sale, and a judge decides if you can't agree. When you and your spouse own a home in Jamaica Plain, Roslindale, Hyde Park, Dorchester, or Roxbury and your marriage is ending, the house is often the hardest asset to resolve. It is usually your largest shared asset, it holds years of equity, and both owners have to sign off on whatever happens to it. Juan Murray's divorce sales page explains how he works with both spouses. For what you'll net after costs, see how much sellers net from a Boston home sale. For taxes at closing, see capital gains tax when selling a Massachusetts home.
Key Takeaways
- Massachusetts uses equitable distribution under M.G.L. c.208 §34, so the marital home is not automatically split 50/50.
- The three common outcomes are selling and dividing the net proceeds, one spouse buying out the other, or deferring the sale to a set date or event.
- A couple filing jointly can exclude up to $500,000 of gain if both meet the use test; each qualifying spouse on their own can exclude up to $250,000.
- Every owner on the title must sign at each stage unless a court order says otherwise.
- Costs come out before the split: on a $900,000 sale, the deed excise alone is $4,104.
How does Massachusetts divide marital property in a divorce?
Massachusetts uses equitable distribution, so the court does not automatically split marital property 50/50. Under M.G.L. c.208 §34, the judge considers the length of the marriage, the conduct of the parties, each spouse's age, health, occupation, income, vocational skills, employability, liabilities and needs, the opportunity of each to acquire future assets and income, the present and future needs of any dependent children, and each spouse's contributions to the marital estate, including as a homemaker.
The three most common outcomes for the home are: sell it and divide the net proceeds under the divorce agreement or judgment; one spouse buys out the other, usually by refinancing into their own name; or the sale is deferred to a set date or event, with proceeds divided then.
If you and your spouse reach an agreement, it becomes part of the divorce judgment and controls what happens at closing. If you cannot agree, a judge decides, and that can include ordering the home sold. If one spouse then refuses to cooperate, the other can return to the Probate and Family Court to enforce the judgment.
Should you sell before or after the divorce for tax reasons?
It depends on who still meets the IRS ownership and use tests. The timing of the sale relative to the divorce can have real tax consequences. These are the federal rules in IRS Publication 523.
Filing jointly for the year of the sale: A married couple filing jointly can exclude up to $500,000 of gain if either spouse meets the two-year ownership test, both spouses meet the two-year use test (living in the home as a main home for at least two of the five years before the sale), and neither has claimed the exclusion on another home in the prior two years.
Filing separately or after the divorce: Each spouse or former spouse who meets the ownership and use tests on their own can exclude up to $250,000 of their share of the gain. When both qualify and split the gain evenly, the total can come out the same as the joint exclusion. The difference shows up when one spouse no longer meets the use test, or when the gain is split unevenly.
One rule helps the spouse who moved out: if you own the home and your spouse or former spouse is allowed to live there under a divorce or separation instrument, you can count that time as your own use, as long as they use it as their main home. A transfer of the home between spouses as part of a divorce is generally not a taxable event, and the receiving spouse can count the time the other spouse owned it.
At the state level, Massachusetts taxes long-term capital gains at the same rate as ordinary income, currently 5%, with an additional 4% surtax on taxable income above an inflation-adjusted threshold that started at $1 million. Because these rules turn on facts, coordinate the timing with your divorce attorney and a tax advisor before deciding.
How does selling a house during a divorce work in Massachusetts?
Once both spouses agree to sell, the process follows the same path as any Massachusetts home sale: Offer to Purchase, Purchase and Sale Agreement, and closing. Every owner on the title must sign at each stage unless a court order says otherwise.
Choosing a real estate agent. Both spouses need to agree on the listing agent. A neutral agent who keeps both parties equally informed reduces friction. An agent with a personal relationship with only one spouse can create it.
Set the price and the minimum acceptable offer before you list. Put in writing how list-price and price-change decisions will be made and what offer you will both accept. That prevents mid-negotiation disputes.
Account for all costs before the split. The sale price is not what either of you walks away with. Before proceeds are divided, these come out: the remaining mortgage balance; the Massachusetts deed excise, $4.56 per $1,000 of sale price, customarily paid by the seller; attorney fees; the listing fee under your listing agreement; and any agreed repair credits or concessions. On a $900,000 sale in Hyde Park, for example, the deed excise alone is $4,104. Running a net proceeds estimate before you list avoids surprises.
Legal counsel. Massachusetts requires an attorney to play a meaningful role in closing; on a financed sale that is usually the buyer's lender's closing attorney. In a divorce, each spouse typically has their own divorce attorney, and both should review the Purchase and Sale Agreement before it is signed.
Both spouses must agree to accept any offer. The Purchase and Sale Agreement requires every owner's signature and sets binding deadlines, so make sure both attorneys have reviewed it before signing.
FAQ
Can a court force me to sell my house in a Massachusetts divorce?
Yes. If spouses cannot agree, a Probate and Family Court judge divides the marital property under M.G.L. c.208 §34, and that can include ordering the home sold. If one spouse refuses to cooperate, the other can ask the court to enforce the judgment. Most couples reach an agreement without that step.
Do both spouses have to sign at closing in Massachusetts?
Every owner on the title must sign the deed and closing documents unless a court order provides otherwise.
Should we sell the house before or after the divorce is finalized in Massachusetts?
It depends on who still meets the IRS ownership and use tests. Filing jointly allows up to $500,000 of excluded gain if both spouses meet the use test; after divorce, each qualifying former spouse can exclude up to $250,000 of their share. If one spouse moved out long ago and isn't covered by the divorce-instrument rule, timing can matter a lot. Discuss it with your divorce attorney and a tax advisor.
What happens to the mortgage when you sell during a divorce?
The remaining balance is paid off from the sale proceeds before the net equity is divided. Until the home is sold or one spouse refinances, both borrowers remain responsible for payments regardless of who lives there, and late payments can affect both spouses' credit.
Can one spouse sell the house without the other's consent in Massachusetts?
Not if both are on the title. Both must sign the listing agreement, the Purchase and Sale Agreement, and the deed. If your spouse refuses and you have a court order directing the sale, you may need to return to court to enforce it.
The bottom line: in a Massachusetts divorce, agree on how the house will be handled, check who still meets the IRS ownership and use tests, and run the net numbers before you list.
Sources
- M.G.L. c.208 §34: https://malegislature.gov/Laws/GeneralLaws/PartII/TitleIII/Chapter208/Section34
- IRS Publication 523, Selling Your Home: https://www.irs.gov/publications/p523
- M.G.L. c.62 §4 (income tax rates and surtax): https://malegislature.gov/Laws/GeneralLaws/PartI/TitleIX/Chapter62/Section4
- M.G.L. c.64D §1 (deed excise): https://malegislature.gov/Laws/GeneralLaws/PartI/TitleIX/Chapter64D/Section1
Have questions? Let's connect.
About Juan Murray
Juan Murray is a Boston broker associate with more than 30 years of experience helping buyers, sellers, and investors across Greater Boston, personally leading every transaction from the first conversation through closing.
RE/MAX Real Estate Center · (978) 581-0801
Equal Housing Opportunity. Juan Murray is licensed as a Broker in Massachusetts, regulated by the Massachusetts Board of Registration of Real Estate Brokers and Salespersons. This article is general information only and does not constitute legal, tax, or financial advice. Confirm your specific costs and obligations with your closing agent, tax advisor, or lender.
