Can I Legally Stay in My House During a Divorce?
Divorces can get messy quickly. It is common for one spouse to not want to share a space with the other. But it isn't always clear who should leave the family home 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?
- Can You Move Out Before the Divorce Is Finalized?
- Who Stays in the Home When You Have Kids?
- Who Keeps the House During Extreme Circumstances Like a Pandemic?
- After Divorce: Should You Sell Your House?
- Pros and Cons to Staying in Your Home During Divorce
- Do You Need a Divorce Lawyer or Real Estate Agent?
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 the title lists only one spouse's name. 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 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, 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, the situation may be handled differently (read more below).
Are Both Your Names on the Title?
If you both bought the house or added one person's name 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 refinancing to help you afford the home.
If both of you are okay with selling the house, states will divide it according to laws on property division. Marital property is usually divided 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 in 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
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.
Whether any minor children live in the house can change who stays in it. Most judges will provide a temporary order during the divorce process that says the kids should not leave the house, and the parent most fit to care for them stays in the house.
This does not mean you have settled your child custody issues. Your divorce attorney will handle child custody and any child support or parenting time issues during the divorce case. But if you need immediate relief and one spouse needs to leave the house, there are options.
During the COVID-19 pandemic, the legal system slowed down, postponing some cases. If you are looking to divorce during a national emergency but worry 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 condition.
A divorce attorney experienced in family law can help get a temporary order to keep you safe at home until deciding on the divorce settlement.
If you get the house in the division of property, 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.
Below are the pros and cons of selling a house after a 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.
- 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 valuable assets to keep your home. Will you need to put less into your 401(k) 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 the 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 separate property 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.
You will eventually need both. But first, you will 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 under family law and divorce law.
If you determine selling the house is the best financial choice, then you should contact a real estate agent to start the process. If you are comfortable explaining the divorce situation, they can 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 explaining it in a legal document. Whether you sell now or later, or 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.
Can I Solve This on My Own or Do I Need an Attorney?
- You may not need an attorney for a simple divorce with uncontested issues
- Legal advice is critical to protect your interests in a contested divorce
- Divorce lawyers can help secure fair custody/visitation, support, and property division
An attorney is a skilled advocate during negotiations and court proceedings. Many attorneys offer free consultations.
Don't Forget About Estate Planning
Divorce is an ideal time to review your beneficiary designations on life insurance, bank accounts, and retirement accounts. You need to change your estate planning forms to reflect any new choices about your personal representative and beneficiaries. You can change your power of attorney if you named your ex-spouse as your agent. Also, change your health care directive to remove them from making your health care decisions.