Can a Spouse Stay in a House During a Divorce Even Though They Are Not on the Deed?

By River Braun, J.D.

Can a Spouse Stay in a House During a Divorce Even Though They Are Not on the Deed?

By River Braun, J.D.

If you are going through a divorce, determining who stays in the marital home will depend on a number of factors. The matter can become more difficult to decide if the deed for the home is only in the name of one of the spouses. However, if minor children are present, the spouse with primary custody will likely be allowed to stay in the marital home even if they are not on the deed.

Sad woman holding a crying infant

Custody of Minor Children

One of the most important factors a judge considers when deciding which spouse should remain in the home is which spouse has primary custody of minor children. Uprooting children can cause unnecessary stress and anxiety for children of divorcing parents, especially if children must change schools in addition to moving out of their home.

Therefore, judges typically prefer children to remain in their home during the divorce case to maintain stability. The parent who has primary custody of the children will remain in the marital home with the children, regardless of whether the their name is on the deed.

Marital Property vs. Separate Property

If minor children are not an issue, the judge may consider whether the home is marital property or separate property. Marital property is typically property that was acquired during the marriage, and separate property is property that the parties owned before marriage. However, there are exceptions.

If one spouse inherited the house during the marriage, the house is considered separate property. But, if the nonowner spouse contributes money to pay mortgage payments or contributes money and time toward improvements to the home, the property may become marital property. If a home is purchased during the marriage with marital funds, the home is considered marital property, regardless of whose name is on the deed.

In some situations, it could be as simple as whether the property is marital property or separate property. A spouse may have a valid argument for forcing the other spouse out of the home if the home is separate property. Of course, there are always exceptions.

Situations That Might Warrant a Nonowner Spouse Remaining in a Home

A judge may find that a nonowner spouse can reside in the marital home temporarily because the spouse has no means of securing another residence. Maybe the spouse is a homemaker and requires time to secure a job while the other spouse has income and means to relocate temporarily.

Another factor that may influence a judge's decision is domestic violence. Regardless of whose name is on the deed, a judge may order a spouse to move out of the home and forbid the spouse from returning to the home until the matter is settled in court.

Petitioning the Court to Remain in the Home

If you believe you have the right to remain in the marital home, you may want to stay in the home until you can petition the court for a temporary order granting you possession of the home. However, if you are in danger, you may need to leave the home immediately to protect yourself or your children. If so, you can file an emergency petition with the court requesting an order requiring your spouse to move out of the home.

If you're having trouble removing your spouse from the home, or feel you have the right to remain there, consider seeking judicial assistance to guide your case forward.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.