SHOULD I STAY IN THE HOME AFTER FILING FOR DIVORCE?
After deciding to divorce, most couples are no longer comfortable sharing a home. However, finalizing a divorce and dividing property can be a lengthy process, taking well over a year. This process can lead to many difficult questions, such as what will happen to the marital home. Below are some common questions and a brief explanation of how the marital home is treated during divorce proceedings.
What Happens to the Family Home During Divorce Proceedings?
A large part of divorce proceedings involves dividing the spouses' property, including the marital home and other real estate. Each spouse retains an interest in the marital home when a divorce petition is filed. This means that neither spouse can dispose of the home; instead, the court must divide the interest in the property. Obviously, a house cannot be split in half. Instead, the court ensures that each spouse's interests are accounted for. There are two ways the courts typically handle this. First, the court allows one spouse to keep the home and pay the other spouse an amount equal to their interest in the home. Second, the court will sell the home and divide the profits equally between the spouses.
During divorce proceedings, the court’s primary concern is that neither spouse attempts to sell or destroy the home. Until the court orders the division of the interest in the house, the spouses have equal rights to occupy the property. Typically, the children will remain in the home with the spouse who is staying there. However, under appropriate circumstances, the court may change this. An example of a proper circumstance is when one spouse has abused the other. In that case, the court may issue a Protection from Abuse Order that forces one spouse to stay away from the other spouse and the marital home.
Should I Stay in the House during the Divorce?
There is no harm in staying in the marital home while the divorce is pending, unless the court orders otherwise. Without a court order specifying otherwise, each spouse has an equal right to use and occupy the marital home. One spouse cannot force the other out of the home and off the property. A spouse cannot force another out, even with police assistance, unless there is criminal activity. Examples of criminal activity that could authorize one spouse to force the other out of the home include domestic violence or harassment. However, staying in the home is a viable option if the couple is still on good terms and comfortable enough with a verbal agreement to share the marital home.
If I stay in the House, am I more likely to get it after a divorce?
Staying in the marital home during divorce proceedings will not determine whether that spouse keeps the home. When deciding how to divide property, including the house, the court considers the ten factors outlined in § 23-2802(c). These factors are: (1)the age of the parties; (2) the duration of the marriage; (3) the property owned by the parties; (4) their present and future earning capacities; (5) the time, source, and manner of acquisition of property; (6) family ties and obligations; (7) the allowance of maintenance or lack thereof; (8) dissipation of assets; (9) the tax consequences of the property division upon the respective economic circumstances of the parties; and (10) such other factors as the court considers necessary to make a just and reasonable division of property. Notably, staying in the home is not included in this list of factors and, therefore, will have little, if any, effect on the court’s decision.
What If I Do Not Feel Safe in the House Because of My Spouse?
During divorce proceedings, both spouses have equal, simultaneous access to the house. Neither spouse can change the locks or prevent the other spouse from entering the house. However, the court can change this rule if one spouse is threatened or in danger because of the other spouse. The court can temporarily prevent the aggressor from entering or remaining on the property with a Protection from Abuse Order under § 60-3107. This order forces the aggressor to stay away from the spouse and any children from the marriage. Generally, the order will keep the aggressor away from the marital home, but sometimes it requires the aggressor to pay for alternative housing. The court makes this determination based on the circumstances of each case.
A Protection from Abuse Order is not appropriate in every situation. An order is appropriate in situations when physical abuse or the threat of physical abuse is present. The abuse does not have to be directed at the other spouse; it can also be directed at the children of the marriage. When abuse is directed at the children, an order is appropriate when the abuse causes substantial physical pain or impairment to the children. Under the statute, sexual abuse qualifies as physical abuse. An order is not appropriate when emotional, verbal, or mental abuse exists, even in extreme cases of emotional abuse.
Deciding to stay in the marital home is a difficult decision, influenced by several factors. However, for the most part, the law does not play a role in making the decision, unless physical abuse is present. Deciding whether to stay in the home has little effect on the outcome of a divorce, including who gets to keep the house. It is essential to contact an experienced attorney when weighing the pros and cons of staying in or moving out of the marital home during divorce proceedings.