Divorce: Who Gets the House?

Often at the time of divorce, both parties want to stay in the marital home. What happens then? How can you force one party to leave?

If the home was purchased during the marriage, it is marital property. Likewise, if it was purchased prior to the marriage but the parties resided in it, there is a good chance that there is some equity attributable to the marriage in it. Both parties have a valid claim to the home and are entitled to live there until the court says otherwise.

If you do not agree with your spouse at the time of separation regarding who will stay and who will leave, you will need to get the court involved. Only a court order can determine who is awarded the home. This can be done at the end of the divorce process, or if needed earlier, through what is called “temporary relief”. Temporary relief gives the parties relief pending any final resolution of the issues. One party would bring a motion before the court seeking occupancy of the home, and the court would determine which party should stay. This party most likely will be the party awarded the home at the time of the final divorce.

The court will look at both parties and determine who it finds should stay in the home. Sometimes this is straightforward; for example, if one party has been the primary caretaker for the parties’ children and does not have anywhere else to move, the court will most likely award them occupancy of the home. However, if one party is not able to afford the home and has no reason to remain in it, the court may not award them the property. As with any other issue, this is considered on a case-by-case basis.