Living arrangements and possession of the marital home are
always involved in a divorce action and are critical in terms of stability and
strategy. As a general rule, absent
abuse or fear of abuse or your safety, you should not leave the marital
home. Once you do, it is tough to get
back in.
If the house is titled in both of your names, you each have the
right to possess the home. This means
that a police officer will not force either of you to leave the residence
unless there is evidence of abuse. If
the house is only in one of your names, the police may still not do anything
and claim that it is a domestic matter that should be resolved by the courts. It does not matter who is on the loan. It is all about the title to the
property.
The way to resolve any issues with possession is to obtain temporary
orders from a court. This is done by
filing a motion for temporary orders and attending a hearing. At the hearing, the judge/commissioner will make
an initial determination of who can stay in the house and who is responsible for
the payment on the house during the divorce.
In theory, temporary orders have no effect on who ultimately gets possession
of the house.
In deciding temporary possession, the judge/commissioner
will review the history of ownership and ability to make payments. Quite frankly, the key factor is whether
there are children involved and who has temporary custody of the children. The age of the children will also be factored
in. No one wants to make the children
move when they are in school and it is in the middle of the school year.
When the divorce is finalized, the marital home issue will
be resolved. The marital home can be
sold or awarded to either party with the other party having to buy out any
equity in the home. I am not a big fan
of agreements to allow one party to stay in the house and then have it sold
later. These arrangements tend to lead
to litigation as the party in possession may not want to move.
Finally, when in doubt contact me to discuss your situation.
