The House – who gets to stay and who must go?

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Most people who’ve been through it would probably describe their divorce or separation as a time of great turmoil and uncertainty in their life.  It’s no wonder that some of the first questions my clients have for me are related to the one thing they believe will provide them with some sense of stability and comfort– the marital residence.

Although some might feel entitled to live in the marital residence because they are the primary caretaker of the children, or they have put lots of work into improving the home, that doesn’t mean that have more of a right to live there than the other spouse.   So who does get to stay in the house and who must go? The answer to that question is that it depends on your case.

How is the deed titled?

If the deed to the marital residence is in your name and your spouse’s name, you can’t force your spouse to leave, and your spouse cannot force you to leave.  If the deed is just in your name, courts will recognize that your spouse still has a marital interest in the home, so if a divorce is pending, neither spouse can simply force the other out.  If no divorce is currently pending, there may be some latitude available to the deed owner.

Once a divorce complaint has been filed, one or both parties can request that the court schedule a hearing to determine which party gets the exclusive right to live in the house while the divorce is pending.  Although it depends on the facts of the case, I often consider this to be an option of last resort.  Preparing for and attending an exclusive possession hearing is expensive, and you usually have a 50/50 chance of winning.

Can you afford to live in the house?

Setting the exclusive possession option aside for a moment, the second thing that must be determined is whether you can afford to live in the house.  Whoever is residing in the marital residence pending the divorce is responsible for paying all costs associated with it, such as the mortgage, home equity loan, utilities, taxes, etc.  To do this, my client and I take into consideration their income (if any), plus any spousal and/or child support they may be entitled to (or have to pay), in addition to their other financial obligations.

When the couple purchased the house, it was while their relationship was intact.  That usually means that either the amount borrowed was based on two combined incomes, or it was based on a budget that was established with the intention of one party working outside the home, while the other stayed home to raise children.  This often means that the lesser earning or homemaker-spouse cannot afford to reside in the marital residence, even with the assistance of child or spousal support.

So what are my options?

If you cannot afford to live in the house, then you should move. As abhorrent as moving out of the marital residence might feel to you, being house-poor is worse.  I’ll be honest; things are going to be tight financially while you go through your divorce. You have to save where you can. You might be concerned about the children moving out of the only home they know, the home they grew up in, but don’t let this stop you.  A house is just wood and nails – home is where their mom (or their dad) is.   Moving to a new home where they can choose the paint in their new bedroom, or get some new decorations is an adventure for them.  If renting your own place isn’t an option, moving in with a family member can be fun for them too.

Assuming both names are on the deed, you can both continue to live in the same house. I have had clients do this, but I would not recommend it for obvious reasons.  You and your spouse will end up fighting a lot (you are getting divorced for a reason), which will make you miserable, and your children miserable as well.

If you can afford to live in the house, but your spouse refuses to go, you should seriously consider being the one to go. In divorce, you have to pick your battles.

On the other hand, if you can afford to live in the house and you really feel that you have good reason to be the one to stay there, talk to your divorce lawyer about asking the court for exclusive possession. If it makes sense in your situation, it doesn’t hurt to try.  We’ve been successful with many exclusive possession cases.

If I move out, am I abandoning my interest in the home?

No!  This is one of the most frequently asked questions I get.  Moving out of the marital residence while your divorce is pending does not mean you are abandoning your interest in it.  If there is any equity in the home, you are entitled to some portion.  If you agree to your spouse retaining the home in the divorce, they would have to buy you out.  If you wish to retain the home, you will have to buy your spouse out- this is something else that should be considered when deciding whether to leave or stay.

Talk to a divorce lawyer

There is no easy answer as to whether you can or should stay in the marital residence.  Everybody’s situation is different.  Your best bet is to talk to your divorce lawyer about the best option for you.




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