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Who Gets to Stay in the House During a Divorce? (2020 Guide)

Who Gets to Stay in the House During a Divorce?

If you are considering filing for divorce, you likely feel overwhelmed with all of the decisions you may need to make that will impact every area of your life. Child custody, child support calculations, spousal support, and the equitable division of marital property all are important aspects of your divorce. However, before a final judgment is ordered by the court regarding all of these important issues, certain decisions need to be made, including which spouse will stay in the house during the divorce process. Learn how to ensure that your legal rights are protected and how you can stay in your house during your divorce process.

 

Can I Legally Stay In My House During My Divorce?

Yes. You can legally stay in your house during the divorce process unless there is a restraining order, or other court order requiring you to stay away from your spouse, your children, or the property.

However, every person will have a different comfort level regarding staying in the marital home during the divorce process. Many spouses will want to leave the marital home in an attempt to avoid any additional conflict or adversarial confrontation. However, if you want to stay in your home during the process of your divorce, you have a legal right to do so. You have the absolute right to stay in the marital home if you are listed on the title to that property. Therefore, unless there is evidence of criminal activity, domestic violence, or harassment by one spouse against another, you have the legal right to stay in your house during the divorce process.

 

Will I Have More of a Legal Right to the Home if I Stay in the House During a Divorce?

There is a chance that the spouse that stays in the marital home will have more of a persuasive argument to keep the marital home if both spouses are requesting that the court award them with the actual home. While there is no legal statute providing for this, the status quo may prove compelling to a family law judge as they attempt to preserve the routines and established environment in the best interest of the children.

Some other key factors regarding the award of the marital home include the following:

  • The spouse that left the home may face abandonment charges if they do not return.
  • The spouse remaining in the home may have a better chance of keeping the marital home if they make the full mortgage payment and pay all of the household utilities and expenses.
  • The spouse that makes the decision to leave the marital home does not ever give up their legal right to the financial interest in the property, and will still receive their monetary share of the equity through the equitable distribution of property within the divorce if they are not actually awarded the property within the divorce.

 

Can I Make My Spouse Leave the Marital Home During the Divorce?

Yes, but only under very serious circumstances. There are two ways you can make your spouse leave the marital home during a divorce.

Temporary Order

If you are the spouse that files the divorce petition, at the time of filing that petition, you may also request that the court grant you a temporary order to property possession of the marital home during the divorce process. If you make the decision to file this request, you will have to provide a substantial reason for doing so, such as it will benefit the children or because there is a reason to be concerned for your safety. A court does not have to grant this request, and if it does not, then your spouse will have the legal right to remain in your marital home during the divorce.

Order of Protection

The second way you may make your spouse leave the marital home during the divorce involves obtaining an Order of Protection. If you do not feel safe in the house because of your spouse, or you feel your children are in danger in any way, then you have the legal right to file an Order of Protection with the court forcing your spouse to stay away from you, your children, and the marital home. If your spouse committed any acts of domestic violence, this court order will require them to remain away from you for up to six months. If your spouse contests this court order, you will have to present specific evidence regarding the abuse, harassment, violence, or other actions that caused you to seek this court order.

 

If I Left the Marital Home, Can I Change My Mind and Decide to Stay During the Divorce?

If an individual makes the decision to leave the marital home for any substantial period of time during the divorce process, they may not have a legal right to access the marital home if they did not continue to make mortgage payments. The spouse staying in the house during a divorce has the right to an expectation of reasonable privacy, and not to have a spouse constantly entering and leaving which disrupts the family and children. If you make the decision to leave the marital home, the spouse staying in the house may have the legal right to file a court order to keep you from returning during the divorce process.

 

Contact an Experienced Family Law Attorney

Many spouses want to remain in the marital home during a divorce for several reasons including convenience, a continuing relationship with the children, or simply for financial reasons. If you are considering staying in your marital house during a divorce, you should ensure your legal rights are protected. If you have additional questions, consider taking our free mini-course that provides additional answers to commonly asked questions regarding the divorce process.  If you have additional questions or concerns, we are more than happy to help. Learn how one of our experienced family law attorneys at My Modern Law in Scottsdale, Mesa, Peoria, or Phoenix, Arizona can provide you with answers to your questions and help you through the divorce process. Contact us at (480) 470-7731 or online today.