Who Gets the House Pending Divorce

By Staff Writer

For many families, one of the major assets to be divided in a divorce is the family home. Even before a final determination is made with regard to what will happen with the home after the divorce, spouses, attorneys and Courts must often grapple with the difficult issue of who will reside in the home while the divorce is ongoing in court or during settlement negotiations.

While a divorce action is pending, the divorcing parties do not necessarily have to continue to reside in the same home. If the parties agree to do so, or if one party unilaterally elects to move, it is entirely permissible for one or both parties to move out of the residence. While this may seem like any easy solution to the stress of living with your spouse while a divorce is pending, a premature move from the home is not always wise.

If you voluntarily move from the marital home during the divorce action, you may be negatively affecting your legal rights. Whether to move out or not is dependent upon a number of factors. You need to consider all of the following issues:  Are the children with you? Is there a Court Order preventing the move? Can you afford to move? Do you want to retain the house? Can you take your other belongings with you? Are you under a great deal of stress as a result of staying in the house? Any move should be carefully discussed with your attorney in advance.

In addition to the possible legal ramifications of a move from the marital residence during a divorce, such a relocation may have serious financial implications as well. Some couples going through Divorce and Separation can afford to maintain two residences; others cannot. If one partner leaves, the marital residence can end up in foreclosure or bills in joint names may be left unpaid. Those financial issues should be considered before any decision is made to move out of the residence.

Absent an agreement to move, or the voluntarily decision on behalf of one party to relocate to another residence, possession of the home during the divorce action can be decided by the Court. If, after discussing the issue in detail with your attorney, you decide that it would be proper to make an application to the Court, the Court may allow you to use the marital asset to the exclusion of the other party. This means that the other spouse cannot enter the residence. If they do, they are subject to arrest for trespass or contempt of Court for violating a Court Order.  In general, a Court will not bar a spouse from the house prior to the conclusion of a divorce unless there is an issue of domestic violence, or if that spouse has actually set up residence elsewhere.