Who Stays in the House During a Divorce?

by Mike Broemmel
Both a husband and wife have the right to seek possession of the marital home during a divorce case.

Both a husband and wife have the right to seek possession of the marital home during a divorce case.

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Disagreement over who lives in the home during a divorce represents a major point of contention in many cases. The unique facts of a divorce case and the circumstances of each spouse dictate who gets possession of the home during the course of the proceedings. If the parties cannot agree on this issue, a judge will award temporary possession of the home during the divorce case.

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Property Ownership Standards

In the United States, individual states adopt one of two different ownership standards in regard to property owned by a divorcing couple. The community property standard maintains that each spouse possesses an equal interest in all property acquired during the course of a marriage. The equitable distribution standard requires a case-by-case assessment of what arrangement would be fair and just to each spouse under the circumstances. Under either system, spouses come before a court initially with an equal claim to possession of the home during the course of the divorce case.

Petition for Possession of Marital Residence

A party to a divorce can file a motion seeking exclusive possession of the marital residence during litigation, either simultaneously with the filing of a divorce petition or after a case starts. Courts consider a number of factors in granting a particular spouse exclusive possession of the home. A key factor is whether the person seeking exclusive use will be the primary custodian or caretaker of the children during the divorce case. Courts want to maintain stability for children during a divorce. Keeping them in the family home is fundamental to achieving that goal.

Ultimate Disposition of Home

Ultimately, the parties need to reach an agreement on what is to happen to their home once the divorce is final or the court will make the decision for them. One resolution is for the house to be sold and the proceeds divided between the parties pursuant to their agreement or a court order. Another is to permit one spouse to keep the home while the other spouse receives a larger share of other assets.

Deferred Disposition

The parties can agree or the court can order a deferral of the sale of a home in a divorce until a date in the future. For example, a court may issue an order permitting the party with primary custody to live in the home until the children reach majority or adulthood. In the alternative, if the housing market is particularly unstable in a community, a court may defer the sale of the marital residence until a more favorable financial climate exists.