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Who Gets to Stay in the House During a Divorce?

Divorces are not easy. Even in those situations where everyone seems agreeable, there is a chance that things could turn messy quickly. In these cases, one of the spouses might not want to be around the other spouse. This often happens when cases become contentious. This leaves you to wonder who gets to stay in the house when you are getting divorced. It’s not always clear when both of the spouse’s names are on the property.

If both of your names are located on the title to the house, then both of the spouses will have the right to be in the house. However, if there is a case of domestic violence, it is possible to get a court order to ban the other spouse from being at the home or near the home. To get a restraining order or order of protection, you would have to file through the local court. If you have an order of protection, the address itself will be protected. The spouse will not be able to come back to the location.

Who is on the Title?

Having the names of both of the spouses on the title is common. In those cases, there will be equal rights to the home. One of the spouses, or both, could stay in the home during the divorce.

However, there may be cases where only one of the spouse’s names is on the title. You might think that this automatically ensures that the spouse gets to stay in the home while the other spouse has to move out.

That’s not always true.

In community property states, any property that is bought during the course of the marriage is considered to be jointly owned regardless of the name that’s on the title. In states that have equitable distribution, the spouse’s contribution during the marriage could provide them with an interest in the property. Therefore, the name on the title does not always matter.

Most of the time, the spouses will not want to be in the same home when they are going through a divorce. They are not usually on the best of terms at this time, so it doesn’t make sense to both be under the same roof. Regardless of who is on the title, it might make sense to move out in some cases.

Pros and Cons of Staying in Your House During a Divorce

First, let’s look at some of the pros of staying in the home. If you have children, keeping them in the home will help to provide more stability. It can also provide you with the time needed to have an appraisal and home inspection done on the property before selling.

Of course, there are also downsides. It can be difficult to afford the payments when you are going through a divorce. It can also be hard to maintain the upkeep of the property. Of course, there is also the potential emotional pain. For example, if one of the spouses was having an affair, that could make it challenging to live in the home together. Emotion plays a significant role in whether people want to stay in the home when they are getting divorced, and if they want to keep the home after the divorce. Emotion shouldn’t be a guiding factor, but it often is.

What About After the Divorce?

You might decide that you want to keep the house even after the divorce. If that’s the case, you will have to buy your spouse out of the house. This can happen in several ways. You could buy the spouse out of half of the equity of the home (or another number that’s negotiated, by refinancing.

However, to do this, you will need to be sure that you can qualify to refinance. You will need to have enough income on your own to pay for the house, and you will need to have a good credit score to qualify for a loan. Most of the time, you won’t be able to count on just the child support and spousal maintenance that you might be getting through the divorce. You will need to have some form of income in most cases.

What about co-owning the house? This is a possibility, but it is rarely a good idea. Co-owning would mean that you and your former spouse will both own the home and have rights to the home even though only one person lives there. The couple would likely need to have a good relationship even after the divorce for this to be feasible.

Should You Keep the House After the Divorce?

After the divorce, will you still want to keep the house, or will selling it and splitting the money be a better solution? It truly depends on a range of factors and each divorce will be different. If you are opting to stay in the home even after the divorce, you will need to be sure it’s the right thing to do.

One of the most important things you have to consider will be the finances. Even though you might be able to pay the mortgage each month, what about the other expenses associated with the house? Can you pay for the utilities, the HOA (if applicable), the pool cleaning and maintenance fees, repairs, etc.?

Consider why you want to keep the home, as well. Do you have emotional ties to the house and your old life when you were married? Is this truly reason enough to keep the home? Would you be better served emotionally, psychologically, and financially by getting rid of the property?

Talk with an Attorney

There are a lot of things to consider when it comes to staying in your home during the divorce, and what you want to do with the home after a divorce. It’s not something you want to attempt on your own. Instead, you need to take the time to find and work with an attorney that can help you through each step of the process. You need someone that can help you meet your goals and make the best decisions for you regarding your divorce. If you need some advice but can’t make it into our offices, we’re host monthly live events to give the community some guidance before hiring an attorney, click here to register!


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