Who Gets to Stay in the Marital Home During a Divorce?

It’s a practical and common question: If I file for divorce, will I have to move out of the house? Can I make my spouse move out?

First, it’s important for you to reflect on your long-term goals. Maybe you want to live in the home during and after the divorce. Perhaps you want to get a fresh start somewhere else once the divorce is final. Your overall objectives are important when negotiating a temporary arrangement with your spouse as you work through asset division, debt division, child custody, child support, visitation, and spousal maintenance.

The fate of the the marital home during and after divorce is based on several factors. Each marriage and divorce is unique, but there are basic aspects every divorcing couple should consider.

One Spouse Owned the Home Before Getting Married

If you bought the home before you married and you are the only name on the title, you might have better legal standing to be the one stay. That doesn’t necessarily mean you can be forced out in the opposite circumstance – if you moved into your spouse’s home. What was once separate property could be transmuted to marital property if the other spouse made financial or sweat equity contributions. Regardless, if you stay in the house you might need to pay or help to pay for your spouse’s temporary residence during the divorce process. Whether that’s the case will depend on both incomes and other facts.

The Home Was Bought After Getting Married

The house is considered marital property if it was bought during the marriage. That is true even if you are the only one on the title and the mortgage is paid by your income. You both have equal rights to the home. Without an agreement in place, neither of you can sell the house or unilaterally kick the other out.

Alternatives to Someone Leaving the Home

Many estranged couples explore alternatives to one of them leaving the home during the divorce. If there are minor children, there is often an incentive to keep things as normal as possible as the divorce process plays out. In larger homes, couples divide the space into separate living quarters. Both stay in the home and continue to parent the children.

“Nesting” is a new living situation where the children stay in the home and the parents rotate time there. The previous standard was for spouses to have separate residences and the children move between them. In nesting, the children stay put. The spouses rent an apartment or home. One spouse lives in the family home one week (or another length of time) with the children while the other spouse is in the apartment. The next week, the spouses switch.

Divorce Mediation to Reach an Agreement

There are no hard and fast rules about who gets to stay in a home. Amicable spouses might be able to reach an agreement, which is put into writing by a lawyer. When coming to a consensus is not possible, consider taking the living arrangement to mediation. Divorce mediation is helpful to hammer out temporary agreements that are in effect during the divorce process.

If mediation fails to result in a temporary agreement, the issue can be brought before a judge. You will want an experienced attorney to argue on your behalf. Based on what is presented in court and other elements, the judge will make the determination of who stays in the home during the divorce.

Whether you come to an agreement with your spouse on your own, use mediation, or litigate the issue, a temporary agreement will not automatically become part of the final decree. If you leave the house in the temporary agreement, you are not waiving your right to the home or other property. The same is true for other temporary orders like child custody, child support, and spousal maintenance.

Protective Order Can Force a Spouse to Leave

If your marriage involves domestic violence, an attorney should file for an order of protection with the local court. A judge can ban your spouse from being in or near the house. Our attorneys at Samuelson Hause PLLC can assist in filing an order and represent you in court if your spouse chooses to challenge the order. If the judge issues an order of protection, they can also put in place other temporary orders such as child custody and child support as well as spousal maintenance. Domestic violence affects all races, religions, and socio-economic classes.

Talk to an Attorney to Better Understand Your Options

Very little in a divorce is straightforward. One element almost always affects another. A lawyer with deep, multidimensional knowledge of New York divorce law can sift through every detail to illuminate your rights.

We have more than 100 years of combined experience in fighting for our clients’ rights. Our exceptional preparation, negotiation, and litigation skills have helped clients throughout the Long Island area.

Discuss the specifics of your case in a confidential consultation with one of our seasoned attorneys. Contact us online or call (516) 584-4685 to schedule.