Make no mistake about it, having a place to live is a primary human need — right up there with water and food. When a couple divorces, the question of who can reside in the family home naturally arises. To answer that question and other, read below for an exploration of some common legal issues surrounding the family home and separation before the divorce.
Can One Party Kick the Other Party Out of the Home?
In a word, no. It's important to look at the matter from the point of view of the court system. Being able to put a spouse out of the home imposes an undue burden on society — a society that is already burdened with providing shelter to the needy population. When people marry, it is assumed that they will cohabit until they divorce. During the separation period, the partners are responsible for each other and it is not the court's job to provide input except in certain circumstances.
What About Court Orders?
The exception mentioned above concerns cases where abuse or a court order prohibits one spouse from living (or coming near) the other. The spouse who is the victim has the right to reside in the family home — at least during the divorce.
What If One Party Owns the Home?
Spouses with protective orders may be allowed to reside in the home regardless of the name on the deed if a protective order is in place. Even if no order is in place, however, it is not easy or wise to try to remove one party from the home. For one thing, law enforcement won't get involved in that type of dispute unless abuse is present. Next, most eviction laws don't apply to married couples. Finally, kicking a spouse out (or trying to) looks bad to the judge who may be deciding on other matters like child custody and the division of debt and marital property, including the home.
Who Pays the Mortgage After Separation?
The person on the mortgage loan is irrelevant when it comes to residing in the home during the separation period. Spouses in this situation, however, would do well to monitor the situation to make sure the spouse (or somebody) pays the mortgage. The home is considered a valuable piece of marital property and it must be protected from foreclosure. Speak to a divorce lawyer about keeping the home safe from seizure.
Your divorce lawyer can explain how things pertaining to the family home go in your state. Speak to them about any issues as soon as you can.Share
6 October 2020
My name is Laura, and I am an attorney specializing in helping clients leave violent marriages. The law can help victims be safe, but many potential clients cannot afford legal services and may be afraid to pursue divorce. They may not be aware of services that have been created to keep them hidden from violent ex-partners and to help them be awarded assets in a divorce so they can provide for themselves and their families. I hope to raise awareness of these issues as well as help direct people in danger to facilities where they can receive guidance and financial assistance.