Who Needs To Leave the Home in a Divorce?

What the legal system has to say when spouses disagree

By Tim Kelly, J.D. | Reviewed by Canaan Suitt, J.D. | Last updated on April 3, 2023

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Divorces tend to be a complicated area of family law because emotions get involved so easily.

As a divorce gets underway, one of the most pressing concerns is often who gets to stay in the home as the process makes its way through the legal system. The answer typically depends on whose name is on the real estate agreement. However, if both spouses’ names are on the legal agreement, they each have an equal right to remain in the home.

This article provides legal information on who can stay in the home while a divorce gets underway. As you’d expect, this can get emotionally messy and legally complicated. No two divorces are the same. So before making any decisions, it’s best to speak with an experienced attorney who can provide legal advice on this topic.

Who Stays? It Depends

When two spouses are divorcing, there can often be confusion over which party has to leave the marital home while divorce proceedings get underway.

The simple answer is that anyone whose name is listed on the real estate title as the property owner is entitled to stay.

However, jurisdiction also plays an essential role in deciding who stays. That’s because most states have adopted laws that place them in one of the following two categories:

  • Community property states. In these states, any property purchased during the marriage is considered joint property despite what the title says. In these states, courts will look to see if the home was purchased during the marriage before considering names on the title.
  • Equitable distribution states. In these jurisdictions, courts consider the spouse’s contribution to the home for such things as mortgage payments and upkeep, affording them a greater interest in the home if their contributions are more substantial.

Many married couples list both of their names on the title when purchasing the home. Typically when this occurs, one spouse offers a buyout to the other spouse. Otherwise, the two divorcing spouses can agree to sell the property and divide the proceeds, typically in a 50/50 split.

If the parting is amicable, couples have more freedom and discretion in deciding what to do with their property. In addition to a strong attorney-client relationship, it would be ideal not to burn any bridges. It may be more financially fruitful in the long run to agree quickly and amicably to avoid prolonged legal costs.

When Kids Are Involved

When minor children are in the home, the answer for which parent stays in the house can get more complicated. In divorce proceedings involving minor children, family court judges usually provide a “temporary order” mandating that the children remain in the home with the parent most fit to provide them care.

Most importantly, this temporary order is not final and does not affect the larger custody agreement that will need to be ironed out in your divorce.

Questions to Ask a Divorce Attorney

Speaking to a divorce lawyer for the first time can often be intimidating, especially because family law tends to dredge up emotions.

Before sitting down with an attorney, consider which questions you’d like to ask them and what answers your ideal attorney might provide. Here are a few examples to help get you started:

  • Am I entitled to spousal support or alimony?
  • Can I get a restraining order against my spouse if they are a danger to me?
  • How are marital assets divided in the divorce process?
  • Do I still have to make mortgage payments if I am not listed on the title?
  • What constitutes community property and separate property?
  • Can I seek a court order forcing my spouse to accept a buyout of the home?

Should I Speak to a Divorce Lawyer?

If you’re contemplating divorce proceedings, consider sitting down with an experienced divorce attorney as soon as possible.

A complicated and emotionally taxing process can be made easier with the benefit of a lawyer by your side. A family law attorney from an accomplished law firm can provide essential legal advice on marital assets, child custody, and restraining orders, all while guiding you through the nuances of divorce court.

Find an experienced divorce attorney in your current jurisdiction.

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