Who Gets The House In A Divorce?

In Division of Property by Robert Toler0 Comments

Often, the first issue we have to solve is where the parties are going to live.  Do we continue to live together until the end of the case?  Does one of us move out and if so, who pays for it?  Does moving out jeopardize my interest in the home?  Can I change the locks? What happens with property division and divorce? Specifically the house.

It’s stressful thinking about these things!  There’s the fear that one wrong move and you’re screwed.  But like so much in the divorce process, the key is knowing the difference between the things you should worry about, and the things you don’t need to.

Stay Living Together?

Starting with the idea that maybe the spouses can continue living together.  We see this attempted all the time and it certainly can be done, but it requires a high level of cooperation and tolerance, because no matter how “okay” a spouse thinks they are with the idea, reality can be much different.  Many of these attempts to continue residing together eventually fail, some in catastrophic ways.  There are many causes for these failures but we believe most of the time it’s simply because the spouses are at different stages of grieving the end of their relationship.  These different stages are ripe for miscommunication and mis-matched expectations.

One spouse moving out is typically the wiser, and safer, route.  Consulting with a lawyer about the consequences is perhaps the wisest move.  A lawyer can help make sure that the arrangement is as good as it can possibly be and that expectations are confirmed, agreed to, and even ordered but the judge.

Paying for a Move

The biggest problem we typically encounter with one spouse moving out of the home is finances.  The family has one set of bills – mortgage, rent, utilities, cable, etc – before the breakup, and two sets after.  Most American families barely cover one set of bills and asking them to stretch to two sets represents a significant lifestyle change.  But there’s not other practical way of doing it so it must get done.

The best plan is a plan.  A realistic assessment of the resources and needs of both spouses is step one in developing a working plan.  Determining if maintenance or spousal support is appropriate is also a necessary step in this plan.  If your circumstances fit the parameters for support, either receiving or paying, be realistic about the amount and try to reach an agreement.

If I Move, Do I Lose the House?

Does moving out of the house constitute walking away from the property?  Are you giving up your rights to the house when you pack up and leave?  Do I have to take everything I want when I leave the house of can I come back at the end of the divorce and get some of my stuff?

These are all important questions which, unfortunately, take a lawyer to answer since every case is different.  Certainly, moving out can demonstrate that you don’t want to keep the house at the end of the case, but not always.  But an economic interest in a marital home is rarely impacted by a decision to leave the house, meaning any share in the house you may have is typically not impacted by your absence.

This is not to say a decision to leave may not have consequences since it definitely can.  For example, the decision to vacate the property where your minor children live, without an agreed upon parenting schedule in place, may be looked at by a court in considering where the primary residence of the children should be.  The decision to leave is one you should fully discuss with your lawyer.

Race to Change the Locks

In order to “stake their claim”, sometimes we see a spouse rush off to change the locks on the marital home in an effort to kick out the other person.  This rarely does much except make the locksmith – and the lawyer – richer.  As noted above, it’s typically a good move to separate the parties and for each to live in their own, separate space, but when a party takes matters into their own hands by changing the locks, there’s often nothing stopping the other spouse from coming back and doing the same thing!  You end up in a battle of locksmiths, swapping out the locks every few hours.

Getting good advise from legal counsel who can step in and get an agreement, can prevent a case from descending into endless, useless battles like a battle of locksmiths.

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