When you start a divorce, you have many big choices to make. You may worry about child custody, support payments, and marital property division. One of the most common questions people ask is who gets to stay in the family home.
Deciding where you will live is one of the first things you must handle in divorce property settlements. It is important to know your legal rights so you can protect your home and your future.
Can I Stay in My House While the Divorce is Pending?
Yes. In most cases, you have the legal right to stay in your home during the divorce process. This is true unless a judge orders you to leave. If your name is on the house title, you have a right to be there. This is a key part of your marital home rights.
Many people choose to move out to avoid arguments or stress. However, you do not have to leave just because you are getting a divorce. You can only be forced to leave if there is a court order. This usually only happens if there is an order of protection due to domestic violence or harassment.
Does Staying in the House Help Me Keep It?
There is no law that says the person who stays in the house automatically gets to keep it forever. However, staying in the home can sometimes help your case for keeping the house in divorce.
Judges often like to keep things the same for the children. This is called the status quo. If you stay in the house and keep up with the daily routine, a judge may see that as being in the best interest of the kids.
Here are a few things to keep in mind regarding real estate and divorce:
- Paying the Bills: If you stay in the home and pay the full mortgage and utilities, it may strengthen your argument to keep the property.
- Abandonment Concerns: Leaving the home can sometimes be viewed as abandoning the property, though this is rare in Arizona law.
- Financial Interest: Even if you move out, you do not lose your financial right to the home. You will still receive your share of the house’s value during the division of assets.
Can I Make My Spouse Move Out?
It is difficult to force a spouse to leave the marital home. The court usually only does this under serious conditions. There are two main ways to ask the court for exclusive use of the marital home:
- Temporary Orders: When you file for divorce, you can ask for a temporary order for property possession. You must give a strong reason, such as the safety of your children or yourself.
- Order of Protection: If you do not feel safe, you can file for an order of protection. If a judge sees evidence of abuse, they can order the other spouse to stay away from the home immediately.
What If I Already Moved Out?
If you leave the home for a long time, it may be hard to move back in later. The person who stayed in the house has a right to privacy. They may be able to get a court order to keep you from returning. This often happens if your presence causes too much conflict for the children.
Before you decide to move out, it is wise to talk to a professional. You want to make sure your decision does not hurt your long-term goals for the property.
Taking Your Next Steps with Your Home
Keeping the family home is a major financial decision. You need to know if you can afford the mortgage on your own. You also need to know how it affects your overall settlement. Every situation is different.
If you have questions about your rights to the marital home, we are here to help. You can learn more about how the law works by looking at our other resources. You can also use a spousal maintenance calculator to see how your budget might change. To get help with your specific case, you can schedule a consultation to talk with a member of our team.
