If you are going through a divorce or you expect to be going through a divorce, one of the most common priorities for women is getting your husband out of the house now. Sharing space with someone you are looking to divorce can be awful. Your home is supposed to be a sanctuary of peace, but the tension that can result from sharing space with your soon to be ex can make you feel like you are walking around eggshells. I had one client who told me she literally locked herself in her room each night to avoid the violent outbursts and constant harassment. Her top priority, and that of many women, was to get her husband OUT and maximize her chances of keeping the house in the divorce.
There are a lot of reasons that women may want to keep the house. Most often, especially when there are children, the reason is stability. Many mothers understand the turmoil that a divorce can have on children and they want to minimize the number of changes their children face by keeping them in their home. At least this way they have the same bedroom, the same neighbors, and the kids are less likely to need to change schools. Many woman also have support from nearby neighbors and established routines for school or extra curricular activities.
Another issue surrounding the home is related to actual custody schedule. If mom moves out, she will likely not be able to afford to rent or buy a home as large as the marital home. Many women worry that if they move out into a one or two bedroom apartment that the children may not have the space they need, or it won’t be practical to have as much time with them as she would like. Especially if the kids are teens, the last thing they are going to want to do is move from their home, near their friends and activities to be around a parent in a little apartment.
The status quo matters! Your established schedule with the children and monthly expenses will form the beginning for the analysis of both a child custody schedule and how much you may be awarded for alimony. With that in mind, this article will help show you how to get him out and keep the house.
How to Get Him Out of The House
There are three obvious ways to get him out of the house and probably more if you are creative. The first is arguable the easiest and more direct way to get him out, this method bypasses the legal system and we see it happen every day.
Convince him to move out
Every day couples separate without the intervention of the court. Conversations happen each day where spouses bargain, cajole, and discuss who is going to live where. You know your spouse better than I do, so think long and hard if there is any way to entice him to move out. If this doesn’t work, move on to plan B.
The second most direct way to get your Husband out is with an Order of Protection. If your husband has committed any recent acts of domestic violence you may qualify to obtain an order of protection. This is a civil order that your husband must stay away from you and this usually includes your home address, your work address and sometimes the address of the school your children attend.
If your Husband has committed an act of domestic violence (stalking, harassment, assault, battery, kidnapping, etc) you can get an order of protection at any courthouse and you don’t need an attorney. There is no filing fee, but when filling out a Petition for an order of protection you need to be very specific as to the dates and details of each incident of domestic violence. You can keep the order of protection for up to six months without serving it. It will activate as soon as it is served and it will act as a fast and effective way to get him out of the house.
Service is via the Sheriff or a process server. Once served, your Husband can contest the order of protection. If he does, you will need to prove all of the allegations in your petition, and you will be limited to presenting evidence about what is specifically mentioned in the petition. You will want to bring an attorney with you to court for this hearing.
The third way to get him OUT of the house is with a temporary order from the family court. In order to get a temporary order, you or your husband must have previously filed a petition for divorce in the family court. Without a pending petition, the judge has no business telling you who can or can’t live in your house. Once there is a petition pending, you can file a motion for temporary orders seeking exclusive use of the home. This is in no way guaranteed. You will need to provide a good reason for the judge to oust him from the house. If your husband has engaged in bad behavior that doesn’t necessarily arise to the level of an order of protection, you may be able to secure an order of exclusive use of the house from the judge.
Once you have executed phase 1 (Getting him OUT) now we can move on to Phase two:
How to Keep the House
There are a number of things that need to happen in order for you to keep the marital home. You have already ousted him, now in order to keep the house there are a number of things that will need to go right. First, you will need to determine an overall equitable distribution of property. For instance, if the home has $100,000 of equity, you will need to buy your husband out, either through offsetting property (like retirement assets) or by refinancing and taking out half of the equity.
Second, you need to be able to afford the house. Remember, this is the house that you and your spouse bought together, presumably with two incomes or with one income supporting one house. Now those two incomes or one income are supporting two households. Maintaining an identical standard of living is almost unheard of. Whether or not you are keeping the house may impact the amount of alimony you need or eventually end up with. To determine the right amount of spousal maintenance or alimony the court will look at one spouses need and the other spouses ability to pay. This is another reason why the status quo and getting him out of the house is so important. If your Husband moved in with his parents, his expenses are low and your expenses still include the family home, this may mean your alimony payments are much higher than they would have been if you had moved into that one bedroom apartment. Budget carefully! Many times women put themselves in a dire financial situation in order to keep the house. Make sure this is the best decision for your long term wellbeing.
Finally, you will most likely need to refinance the house into your name alone. This is not a requirement, but your ex and his attorney would be silly not to require you to re-fi in your name alone. Sometimes inexperienced attorneys or self representing litigants overlook the fact that just because the house is awarded to one spouse, the lender has not released both spouses from the note on the house. The divorce decree is not binding on the lender.
In sum, if you follow these step by step instructions and stick to an overall plan you may end up with the kids, the house, and a greater sum of alimony than you would have had otherwise. The keep in any divorce is starting with a plan, coming up with a strategy and careful execution. We can help. Come see us today for a personal strategy session to show you how to get him out and keep the house