Can I Sell My House if My Husband Is in Jail? (2023)

Having to deal with an incarcerated spouse is difficult and overwhelming in itself. Worse, a situation may arise whereby you have to sell the house. Perhaps due to high maintenance costs, difficulty keeping up with mortgage payments, raising bail money, or due to divorce or other personal reasons.

Whatever the situation, you may be wondering whether you can sell the house while your husband is still in prison and if so, how do you go about it?

This article will discuss the options available for selling your house when your husband is in jail.

Unless you bought the house before your marriage, it was gifted to you, or you inherited it, your husband has a stake in it. It is considered a marital asset. If their name is on the deed or land registry, they definitely have a stake.

However, even if their name is not on the deed, they most likely have a stake in the house according to the marital property laws in most states.

If you live in one of the nine community property law states—New Mexico, Arizona, Washington, California, Idaho, Louisiana, Texas, Wisconsin, and Nevada—they have a 50-50 stake in real property regardless of their contribution when buying.

In other states, including Colorado, their stake and property division is determined according to their contribution in finances.

Your husband may also have the right to the family home through the homestead law. The law prohibits one spouse from selling a house if it is the primary residence for the other spouse or their children. While your husband may be away in jail awaiting trial or serving time, if the house was their primary residence, you cannot sell it without their consent.

As long as your husband has a stake in the family home, they have the right to the property.

And they must consent and sign off on it. Although you may be able to list the house without their signature, you cannot legally close the sale and transfer the deed to the new owner without their signature.

Furthermore, he still has a right to sign legal documents and receive legal advice, even in jail.

Once you have established that your husband has a stake in any real property you own, you want to involve them as early on as possible in selling the house and determining the property settlement.

Let them understand why it would be in everybody’s best interest. The sale process will be straightforward if they agree to your decision to sell the house and are willing to sign the legal documents.

Below are various ways they can consent or sign off on the house sale.

Signing the Sale Documents Personally

You would go on with the sale process like any other house. Then, take the pre-list and sale closing documents to your husband in prison for them to sign. However, you may need to seek permission from the prison and for them to facilitate the signing of the pre-sale and sale documents. In some instances, a third party is required to witness the signing.

Appoint You as their Power of Attorney (POA)

They could also opt to make you their power of attorney if you are not already. Their lawyer would create a POA for them to sign indicating the extent of your authority over the finances and assets. Even if they had already appointed you their power of attorney, it would be respectful to seek their approval to sell the house.

In both scenarios, filing the POA with your county records office is best to ensure a smooth house sale process when transferring the property.

Obtain a Quitclaim Deed

Another option would be to obtain a quitclaim deed. Whereby your husband transfers their property ownership rights to you. It is a simple process. The quitclaim deed is filed and recorded with the county recorder’s office. As long as it is in place, you would go through with the sale of the house as if you are the sole owner.

If your husband does not agree to the sale of the marital residence, you can either attempt to convince them or seek assistance through the court.

Offer to Buy Them Out

To convince them into a sale, offer to buy out their stake so that you have sole ownership of the property. This option works well even in a divorce scenario. You would need an appraisal to determine the house’s fair value and establish their rightful stake.

However, they may still refuse to sell their share of the home rights. Listen to them to understand their inhibitions and reach a compromise. Maybe they are emotionally invested in the property or simply think it is a bad decision.

Once you understand their hesitance, it will be much easier to negotiate a way forward that works for both of you.

You could also offer a higher buyout than their stake to nudge them further, especially if you anticipate that you will sell the house profitably.

Equity Exchange

If you do not have money to buy them out, you can offer to exchange equity in another asset. Say you also jointly own another house; you can give up your stake in that house to fully own the one you want to sell.

Appeal for a Court Order

If all the above options fail and you are convinced that selling the house is the most appropriate action, move to the court to petition a sale. This process is expensive and time-consuming. You will need to hire a lawyer to file a petition with the court.

The court assesses the sale to determine if it is in the best interest of both of you. It also assesses whether your husband has a good reason to refuse the sale. If the judge finds that it is best to sell the house, they give a court order for you to proceed with the sale.

In a scenario where the house has a mortgage, or other stakeholders have a lien, the proceeds should first go towards paying the amount owed. Any costs associated with the sale of the house, including real agent fees, are then deducted from the house. The remaining amount goes to you and your husband (where applicable).

If your spouse has agreed to sell without hesitation, they have a right to an equitable share of the proceeds. If you manage their finances or are their power of attorney, all the proceeds can be sent to your joint account. Otherwise, they should provide an account where their share will be deposited.

If you bought your husband out or exchanged their equity in the house, then all proceeds go to you as the sole owner. In the case of a court order, your husband may have a stake in the proceeds as per the court’s verdict.

The easiest way to sell a house fast if your husband is in jail is to a cash buyer. Finding a buyer and closing the sale within 30 days is possible as minimal formalities are involved. You can specify in your listing that you are strictly looking for a cash buyer or contact cash buyers in your location directly to get an offer.

Most cash buyers are willing to buy the house as-is regardless of if there are damages. However, they offer a lower price than the fair market value. Also, you will still require your husband’s consent, or you must have sole ownership of the house for a cash buy.

Observe security measures to avoid being scammed if you opt for a cash buyer. Check the cash buyer’s credibility on online reviews or seek referrals from people in your social circle. Ask for proof of funds from the potential buyer and use an escrow service to close the sale.

If you are not willing to sell the house at a lower price than the market value, hire a real estate agent to help you with the sale process or proceed to list yourself.

You can sell your house if your husband is in jail. However, you will require their approval for the sale. They can approve by signing the sale documents themselves, appointing you as their power of attorney, or giving up their ownership rights through a quitclaim deed.

Once you have their approval, proceed to sell the house through the normal sale process. If they do not agree to the sale, persuade them to a buyout or equity exchange; otherwise, petition the court to compel a sale.

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