If you are considering filing for a divorce, you are probably feeling overwhelmed by all the decisions you have to make that will have an irreversible impact on you and your family. Child custody, the amount of child support, spousal support, and the fair division of marital property are all important aspects of your divorce. Or you may just simply no longer want to live under the same roof as your spouse and share your home.
However, before a final judgment is ordered by the court, it may take several months and so it is necessary to ask all these important questions as some decisions have to be made.
Who gets to stay in the house during separation? Who has to leave the house in a divorce?
Learn how to make sure your legal rights are protected and how you can stay at home during your divorce process.
In some states, spouses are required to physically separate for a specified period of time before a divorce becomes final. Make sure you know what the law in your state requires.
The part that stays at home during the divorce is a complicated one. There is no clear answer in the statutes and rules governing divorce cases. The decision to stay in the marital home is a difficult one. Several factors influence this decision. However, the law tends to stay out of the question. Unless physical violence is involved, the decision is largely left to the parties.
Can I legally stay in my house during the divorce proceedings?
Yes you can legally stay in your home during the divorce process. The only thing that can stop you from doing so is a restraining order or other court order requiring you to stay away from your spouse, children or property.
This situation arises when one of the two spouses applies to the court because he is being abused by his spouse and it is therefore necessary to protect himself and his children.
Many spouses will want to leave the matrimonial home in an attempt to avoid possible additional conflicts.
However, if you want to stay at home during the divorce process, you have the legal right to do so. What legitimizes your presence at home during the divorce is whether or not it appears on the title deed.
Should I stay in the house during a divorce?
As we recalled above, unless the court orders one of the spouses to do otherwise, it is quite possible to stay in the marital home during the divorce.
Unless the court orders a spouse to do otherwise, there is nothing wrong with staying in the martial house during the divorce. However, without a court order, each spouse has the same right to occupy and use the matrimonial home. This means that one spouse cannot force the other to leave the property – even with the help of the police – unless there is domestic violence or harassment. However, if a couple is still on “fairly” good terms and feels comfortable with a verbal agreement, staying home is a viable option.
Can I ask to stay in the house?
If you believe you have the right to remain in the matrimonial home, you may want to stay in the home until you can apply to the court for a temporary order granting you possession of the home. However, if you are in danger, you may need to leave the house immediately to protect yourself or your children. If this is the case, you can file an emergency petition with the court to ask for an order requiring your spouse to leave the house.
If you are having difficulty removing your spouse from the house or if you feel you have a right to stay there, consider seeking legal assistance to move your case forward.
Will I have more legal right at the house if I stay home during a divorce?
It is possible that the family court judge takes this argument into account when ruling when both parties request to keep the marital home, but no law specifies this. The judge will necessarily seek to maintain a balance for the children.
Other key elements will be studied to determine the allocation of the marital home:
- Abandonment costs can be claimed from a spouse who has left the marital home
- The spouse who has kept the marital home may have a better chance of keeping it if he pays the entire mortgage and if he continues to cover all household expenses
But it won’t matter much whether or not you stay home for the judge and the court. At the time of divorce, equitable distribution will be the priority. This usually means that one spouse will only be able to keep the house if the other spouse receives money or other property of comparable value.
Can I force my spouse to leave the marital home during the divorce?
Yes, but only in very serious circumstances. The most common example is where one spouse abused another. In this case, the court can issue an order for protection against abuse requiring one of the spouses to move away from the martial hearth and the other spouse.
Homeowners should also remember personal belongings and furniture in the house. A moving spouse should create an inventory of all possessions and photograph important items. If there is no agreement between the spouses on the taking of objects from the house, the moving spouse should only take personal effects, such as clothing and jewelry.
There are two ways to get your spouse to leave the marital home during a divorce:
- Temporary protection against abuse (art 60-3107)
- The protection order
- Temporary protection will be requested when you file the application. It consists of asking for temporary possession of the home, because there is a form of insecurity. It will then be necessary to prove it with one or more substantial reasons. The court is under no obligation to accept this request for temporary protection. If he refuses it, your spouse will be allowed to stay in the matrimonial home as much as you.
- The protection order will be made if the court finds that there is a certain risk to you and the children. It cannot exceed 6 months, and your spouse will therefore be formally prohibited from entering the marital home during this entire period. You will then obtain sole custody of the home.
If I have left the marital home, can I change my mind and decide to stay during the divorce?
The spouse who keeps the marital home has the right to privacy. It is therefore legitimate that he does not want the other party to be able to come and go to the home as he wishes. In addition, if she has not continued to pay the mortgage, then she will not retain any legal rights to the home during the divorce proceedings. If you plan to stay in your marital home during a divorce, you need to make sure that your legal rights are protected.
What should you not do during separation?
The first thing not to do is to leave the marital home without thinking about it first because the consequences can be significant for the outcome of the divorce petition.
Do not give in to the pressure of your spouse, who will try to make you leave the home in order to claim family abandonment.
You are under no obligation to leave your home as soon as your NAME appears on the title deed or lease, unless this is a wish expressed by you
By choosing to leave home, you prove to the court that you are moving away from your children and their daily lives.
When a divorce petition is filed, it is essential to remain reasonable in order to be able to demonstrate to the court a real involvement with your children.
Therefore, voluntarily walking away is not the best message to send to court. The judge will always be more attentive if you make your children the top priority.
Consider consulting with an experienced divorce lawyers to weigh the pros and cons of staying put or moving while your divorce is pending. He will be able to advise you and guide you in all the steps to be taken.
You can also read our article Who pays for the divorce?