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Can I Legally Stay in My House During a Divorce?

Portrait of single mother with young sons in front of house

Divorces can get messy quickly, and it is common for one spouse to not want to be in the same space as the other. But wondering who should leave the marital home isn't always clear when both of you have your names on the real estate agreement. This article covers:

Who Gets to Stay in the House During a Divorce?

From a legal perspective: If both your names are on the title, you both have equal rights to be in the house.

Note: If your case involves domestic violence, you can get a court order to ban your spouse from being in or near the house. You would need to file for a restraining order or an order of protection with your local court.

This article focuses on married couples seeking a divorce, but you still have rights if you are an unmarried couple sharing property rights.

Who Is on the House Title?

Typically, both spouses are on the house title, but there are situations where only one spouse's name is listed. Does that spouse automatically get to stay in the home? Not necessarily.

In community property states like California, for example, any property bought during the marriage is considered jointly owned regardless of the name on the title. Similarly, in equitable distribution states, a spouse's contribution to the mortgage during a marriage could give them an interest, as could any work they did on the home.

If you purchased your home before the marriage and did not add your spouse to the title, then you may have a stronger legal argument to stay in the home. A divorcing couple probably isn't going out of their way to be kind to each other, so it is rare to have a spouse stay in the home when they aren't on the title.

In amicable divorces and separations, the decision is between you and your soon-to-be-ex partner. If you have children, then the situation may be handled differently (read more below.)

Are Both Your Names on the Title to the House?

If you both bought the house, or one person's name was added to the title later, you both have equal rights. It is common for one spouse to offer a buyout of the remaining mortgage.

If money is a concern, you have options to keep the house after your ex leaves. You can seek spousal support or look at refinance options to help you afford the home.

If both of you are okay selling the house, then it is divided according to property division state laws. This is usually 50/50 of the house's selling price (or 50/50 of the debt) if you live in a community property state. If you live in a common law or equitable distribution state, a judge will review a number of factors to determine what is fair, including what each spouse contributed (home improvements, etc.).

Staying in Your House During Divorce

There are some advantages to staying in your home during the divorce process. It might:

  • Provide stability for your children
  • Give you one less thing to worry about during divorce proceedings
  • Give other family members (like a live-in grandparent) time to find a new home
  • Buy you time to have an appraisal on the value of the home and find a real estate agent before selling the home

There are also common downsides to staying your home instead of renting an apartment or using a long-stay hotel. You might face:

  • Difficulty affording mortgage payments alone
  • Emotional pain (common if one spouse was cheating or filed for divorce suddenly)
  • Difficulty managing the house's upkeep

Can I Move Out of My House Before Divorce?

Yes, you have the option to move out whenever you want. If your name is on the title for the home, however, you are financially responsible for it.

Some exes may want to stop paying their mortgage if they move out. Keep in mind that your own finances and credit will take a hit if you do this, and your ex may be able to take you to court.

Divorce Process: Who Stays in the House When You Have Kids?

Any minor children living in the house can change who stays in it. Most judges will provide a temporary order that says the kids should not leave the house, and the parent that is most fit to care for them stays in the house with them.

This does not mean your child custody issues are settled. Your divorce attorney will handle child custody and any child support or alimony issues during the divorce case. But if immediate relief is needed and one spouse needs to leave the house, there are options.

Who Keeps the House During Extreme Circumstances?

During the COVID-19 pandemic, the legal system slowed their processes, and some cases were postponed. If you are looking to divorce during a national emergency but are worried about leaving your home, or being kicked out, you have rights. You cannot be forced out of your home during an epidemic, natural disaster, or other extreme conditions.

A divorce attorney experienced in family law can help get a temporary order to keep you safe at home until the divorce settlement is decided.

After a Divorce: Should You Sell the House?

If you get the house in the settlement, you can still choose to sell it after the divorce is final. But should you sell it, or should you keep it? Once your attorney completes their job in the divorce settlement, a real estate agent and financial advisor can help you make the right decision about selling your house.

Here are the pros and cons to selling a house after a divorce.

Pros of Selling the House After the Divorce

The option of selling your home might depend on the housing market in your city, but it can be a good option in most cities. It allows you to step back and pick the right house for your needs and your budget instead of getting stuck with your current home's problems.

It is advisable to get the home inspected as part of the divorce property division process, so you know what issues you need to deal with before selling.

Other pros to selling your house include:

  • Picking something smaller or more affordable
  • Paying less in taxes
  • A fresh start in a new home or location

Finances are always a concern when keeping a home on one income. Keeping your house might not be right for you if:

  • You are not the partner who did home repairs, general upkeep, and yard maintenance (remember: keeping your house in great shape is key if you eventually want to sell it)
  • You expect new problems will come up, such as knowing your roof is starting to leak and could be a high cost
  • You cannot handle taxes, repairs, and utility bills
  • You have painful memories in the home

You also might get stuck giving up other assets to keep your home. Will you need to put less into your 401k, or trade in your retirement accounts just to afford to keep your home? It can be difficult, but it is essential to look at the long term future even if you are very attached to your home.

Cons of Selling the House After the Divorce

It is important to keep in mind that sellers lose a chunk of money every time they sell a home. Your real estate agent and title company (and attorney if your state laws say an attorney must review all documents) will all have fees. These closing costs are substantial and range from $15,000 to $25,000. You need to consider if selling makes financial sense for you.

Probably the biggest factor in keeping your home vs. selling it is stability. If you have children, they won't need to leave friends in the neighborhood or change schools. It can also be nice to keep the memories in the home alive and not uproot children into a new home, even if it is nearby. Keeping your house after a divorce might be right for you if:

  • Your kids are attached to the house
  • You can afford the mortgage and bills on your own (with some help from alimony or child support)
  • The house is partly paid off
  • You and your ex want to try nesting

"Nesting" is a newer theory where kids stay in the house full time, and the parents switch off their time there. This involves paying for the house and apartments or condos for both parents, so it isn't always an ideal or even possible option. But it can work well for amicable exes that might both want to live with new partners, or who aren't ready to make a decision about the house just yet. It can also work well if there are babies in the house or a kid is leaving for college soon. Keeping things as normal as possible for your kids is often the ideal.

Who Do I Need More: A Divorce Attorney or a Real Estate Agent?

You will eventually need both, but first, you want to review some divorce attorneys and form an attorney-client relationship with one. They will provide legal advice on your financial situation and your legal rights to the house.

If you determine selling the house is the best financial choice, then you should contact a real estate agent to get the process started. If you are comfortable explaining the divorce situation to them, it can help them understand the timeline, the asking price you need, and who needs to sign the selling paperwork.

No matter what you decide to do with your house, it is essential to have clear language in a legal document that explains it. Whether you sell now or later, your ex takes the house, or you sell when your youngest child moves out, you want the deal to be clear and not give you any trouble in the future.

Next Steps

Contact a qualified divorce attorney to make sure your rights are protected.

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