After making the decision 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.

During Divorce Proceedings, What Happens to the Home?

A large part of divorce proceedings is dividing the property owned by the spouses, including the marital home and other real estate. Each spouse maintains an interest in the marital home when a petition for divorce is filed. This means that neither spouse can dispose of the home – instead, the court has to divide the interest in the property. Obviously, a house cannot be split in half. Instead, the court insures that the interest of each spouse is 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 the equivalent of 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 interest in the home divided, the spouses have equal rights to occupy the property. Typically, the children will remain in the home with the spouse that is staying in the home. However, under appropriate circumstances, the court may change this. An example of an appropriate 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 staying in the marital home while the divorce is proceeding, unless the court orders a spouse to do 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 assistance from the police, 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?

Staying in the marital home during divorce proceedings will not determine whether that spouse gets to keep the home. When determining how to divide property, including the house, the court considers ten factors found 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. One spouse cannot change the locks or prevent the other spouse from entering the house in any way. However, the court can change this rule if one spouse is threatened or in danger because of the other spouse. The court is able to temporarily prevent the aggressor from entering or staying at the property with a temporary 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 the order requires the aggressor to pay for alternative housing instead. The court makes this determination upon the circumstances of each individual 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 divorce, including which spouse gets to keep the home. 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.