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Who Has to Leave the House in a Divorce?
Divorces are often messy, so it is expected that most couples no longer want to stay under the same roof while it is being processed. But who has to leave the marital home in this case?
Deciding which spouse has to leave a marital home during a divorce depends on several factors, such as the rules of the state, the name on the title, financial dependency, violence, if there are children involved, and who stayed in the house during separation. If the couple can't decide on their own who should leave the house since they are attached to it, the judge would pass judgment according to the factors mentioned.
Read on for who has to leave the house in a divorce as well as some alternatives to moving out.
Marital and Separate Property: Is There a Difference?
Property division during a divorce is a significant place of contention for many couples. But one major aspect that dictates who has to leave or stay in the house is based on whether it is marital or separate property.
A marital property belongs to both spouses as they acquired it during the marriage. These marital assets include the marital home, vacation home, etc. If the divorcing spouses cannot decide whether property is marital or not, the local court would consider other evidence to identify if it is and then decide who will get it in the end.
Meanwhile, separate property is a valuable asset acquired by one partner before marriage or after the separation. In other words, in the case of divorce, the other spouse doesn't have a legal claim to it.
Some other assets considered separate properties become marital when gifted to the marriage. For instance, if a spouse owns a home and adds the name of the other spouse to the title, they both become the legal owners.
To understand the nuances in your state, we suggest consulting an experienced local attorney.
Who Decides Who Gets the House in a Divorce?
Before diving into who has to leave the house in a divorce, let's discuss who gets the house in a divorce...
Ultimately, the divorcing spouses can decide who gets the house. However, if it is a pretty messy divorce and both want to keep it, the court would have to make the decision.
Both ways of deciding who gets the house have their pros and cons.
For starters, when the spouses decide on their own, they'll be able to avoid the long legal process of asking for a court judgment. However, this may also mean that one spouse may out-maneuver the other.
A judge's decision, on the other hand, is quite fair because it is often based on numbers and other factors. The downside of this process is that it is expensive for both spouses. Especially if they are required to be represented by a family law and divorce attorney. Further, the house needs to be appraised.
Ideally, before going to court, divorcing spouses should figure out who stays in the house. This is especially suggested if the divorce is amicable and both spouses are smart and rational. But, most divorces are messy...
Who Gets to Stay in the House During a Divorce?
When the spouses cannot decide who has to leave the house in a divorce, the court takes matters into their hands. The decision of a judge on where the marital property belongs is based on several factors and they are as follows:
State Laws
A community property state considers both spouses as legal owners of a marital home, regardless of the name on the title deed. In short, the equity of the house is split equally between the spouses and they can both stay on the property if they want to, according to community property rules.
Meanwhile, in equitable distribution states, the process of deciding who gets the house is much more complicated as per state laws.
Often, in an equitable distribution state, the judge decides to attempt a fair division, but one partner may still get a higher percentage than the other. This is usually observed when a spouse's contribution to the mortgage and home maintenance is way bigger than the other spouse.
For instance, one spouse may be granted the ownership of both the marital home and the vacation home and the other is left with the car and minor assets.
Who is on the Title Deed
In most cases, if both the names of the spouses are included on the property title, they would be given equal rights to the home. Note, though, that in a vast majority of states, the name on the title deed doesn't matter.
Whatever is purchased during the marriage, especially in community property states, is considered property of both spouses. Therefore, if a husband bought the marital home solely with his money during the marriage, the wife also becomes its legal owner even if her name is not on the title deed.
To check whether this rule applies to your state, communicate to a divorce attorney that has your best interests in mind.
Financial Dependency
If you are financially reliant on your higher earning spouse, you'll likely be allowed by the court to stay in the marital home until you find a job and settle your finances. You don't have to worry that you would be thrown out of your property with no means of income.
In case the court's decision regarding this legal issue did not favor you, you can still file for temporary possession of the marital home.
Domestic Violence
Typically, when domestic violence is involved in a divorce, it is clear who has to leave the house in a divorce.
The victims access the house, and a restraining order / protective order is filed against the abusive spouse. The abuser is not allowed to go to the property and failing to follow this restraining order will result in an arrest.
Domestic violence is a legal issue that is often defined differently in every state. You must consult with a family law and divorce attorney if your case can be considered domestic violence. This can definitely help you gain legal ownership of your marital home and obtain a protective order against your ex-partner.
Who Stayed in the House During Separation
When a couple's argument becomes heated, one spouse often leaves the house in haste. While this action is understandable, it can also lead to a major disadvantage when divorce papers are filed.
The spouse who left the house can be accused of abandonment or not providing spousal support, leaving the other partner to get legal ownership of the house.
Child Custody
The court prioritizes the welfare of children, so if the couple has kids and cannot decide who has to leave the house in a divorce, the caregiver of the children or the one who filed for temporary custody would be allowed to stay on the property during the divorce proceedings.
Of course, if the primary caregiver doesn't want to stay on the property, the other spouse can still live in the house. Note that in many cases like this, the spouse who is not the primary caregiver also pays higher child support.
Dealing with a marital property when there are children involved can be complicated-- we recommend seeking out a family law attorney.
Will You Lose Your Rights to the Property if You Move Out During the Divorce Process?
You don't necessarily lose your rights to the marital property if you move out during a divorce. You can still return and visit until the court decides on an arrangement because you still have short-term home rights.
However, as discussed above, leaving the property can lead to accusations of abandonment. Your spouse may use this against you to claim the property after divorce.
Who Pays for the Mortgage of the Marital Property During Divorce?
Who settles the mortgage payments during a divorce depends on who is named on the loan. When both spouses are named (several liability or jointly owned mortgage), both are required to continue paying. However, if one spouse doesn't give their share, the other spouse would be liable to pay the full amount.
This is also true if only one spouse is named on the mortgage. If that spouse did not pay, the other would be required to shoulder the amount since it is marital property.
Alternatives to Moving Out of the House During a Divorce
If the divorcing spouses cannot decide who has to leave the house in a divorce settlement agreement but also don't want the court to decide for them, they may consider these options. Note that some of these options will affect your taxes when getting a divorce.
House Splitting
A huge marital home can be divided into two occupancy areas. This may seem like a rom-com movie setup, but this actually works, especially for a spouse who used to be dependent on another and still figuring out how to be financially stable.
The divorcing couple should decide which areas belong to which. They can also set a schedule on which spouse can use an area for a certain time.
Bird-nesting
Bird-nesting means the children stay in the family house and the parents alternately live with them. For instance, the mom stays with the kids for a month and then moves out for another month so the father can live with them.
In this setup, the spouses are staying in different homes (in a family members place, an apartment, a condo, etc.) and only stay in the family residence for the period they agreed upon. This is to provide stability to the children during the divorce process.
Note: While this is favorable to the children, it may also strain the parents financially because they are running two households simultaneously.
Buy Out the Other Spouse
A buyout is a common solution for many couples when they can't decide who has to leave the house in a divorce. The spouse that is attached to the property due to countless memories will pay the other spouse, so he can get sole ownership.
Spouses who serve as the primary caregiver of the children but weren't given the rights to the property may also choose to buy the house so the kids can be given stability.
One partner may buy out the other by paying with cash or giving up other marital assets with the same value as the home.
Both Leave and Sell the House During a Divorce
This is perhaps the most suggested alternative to one spouse moving out of a marital home. A decision to sell the house to make a profit is reached amicably by the divorcing couple.
To do this legally, the couple should apply for a court order allowing the sale of the home in a given timeframe. Once this has been granted, the sale can proceed.
The profit from the sale would then be divided equally among the spouses.
Selling Your House During Divorce
The fastest way to deal with marital home issues during a divorce case is to get a cash offer. Cash buyers process home sales in as fast as seven days so the spouses would not have to decide who has to leave the house in a divorce and won't be at each other's throats for long.
It is suggested that the family home is sold to a cash buyer before filing for a divorce settlement to avoid filing a court order. But if this isn't possible, the divorcing spouses can still get a cash offer at a later date or while going through the divorce process.
Selling a house to a cash buyer is super simple. You just have to call the cash buyer or fill out a form on their website to get an offer. After which, they'll schedule a visit to your property to formulate an offer accurately.
If you accept their offer, you'll receive an electronic contract that you and your spouse have to review and sign. Once everything is settled, the sale of the house will proceed to closing. Expect the cash buyer to cover the closing costs and the proceeds of the sale to be deposited in the bank account that you and your spouse chose.
Final Thoughts: Who Has to Leave the House in a Divorce?
There's really no clear cut answer on who has to leave the house in a divorce. The judge's decision would depend on state rules, financial dependency, issues on domestic violence, name on the title deed, and who stayed in the house during separation.
If you don't want to spend a lot of money on a family law and divorce attorney or having your home appraised as the local court would require, you're better off selling to a cash buyer to get a fresh start fast.
Here at Sell My House Fast, we buy houses from spouses going through a divorce so they can avoid the lengthy traditional sale and move on quickly. We give a fair cash offer and cover closing costs so both you and your ex-partner can start new lives with enough cash.
To start selling your house, fill out our form below or call us at (844) 207-0788 to get a free cash offer.
