Divorce typically involves two spouses moving into separate living arrangements, but one spouse may remain in the marital home while the other relocates. This is the most common form of housing rearrangement following divorce, but sometimes the divorcing couple disagrees about who will keep the marital home. You may want to throw your ex out of your house, but you must have legal grounds to do so, otherwise you must negotiate living arrangements with your ex.
Who Gets the House in Divorce?
Almost every divorce involves two main types of property: the separate property of each spouse, and the community property obtained during the marriage. Community property is a blanket term that applies to nearly every possible asset a couple could obtain during a marriage. If the couple buys a house together, the house would be community property in the marriage and each spouse would have an equal claim to it in divorce.
When it comes to separate property, it remains the property of its original owner in divorce. However, if the other spouse increased the value of a piece of property or an asset, helped maintain the property, or otherwise contributed to maintaining or increasing the property’s value, the property may become community property and subject to division in divorce.
Imagine a couple marries and one of the spouses already owns a home. Typically, that home would count as that spouse’s separate property. During the first few years of the marriage, the spouses work together and invest in the property, increasing its value from $100,000 to $175,000. This significant boost in value resulted from the effort of both spouses, so a judge would likely consider it marital property if the couple decides to divorce.
Although prenuptial agreements generally carry negative connotations to most Americans, the reality is these agreements can streamline the divorce process if necessary. A prenuptial agreement will state each spouse’s financial rights and responsibilities in the marriage and set forth property division rights in divorce. Both parties must sign the prenuptial agreement under the advice of legal counsel free from duress or coercion, and they must be of sound mind when they sign, or the contract may be unenforceable.
Asking your betrothed to sign a prenuptial agreement is not a very romantic gesture, and some may take the suggestion as an insult or indication of lack of faith in the marriage. However, a prenuptial agreement could be very valuable to both you and your fiancée, especially if you both own significant assets and property.
The only situations in which one spouse would have grounds to forcibly remove the other from a marital home is if there is a record of domestic abuse, criminal activity, or the other spouse does not have any valid claim to the property. Some divorcing spouses may require temporary restraining orders against potentially dangerous exes, and the police can help them arrange these protective orders.
Ultimately, the court will decide who owns the marital home and who gets to remain in it. Any spouse who committed domestic violence or other criminal offenses will likely lose any right to remain in the property, but if the two spouses have equal claim to the property and equal right to remain in it, they must reach an agreement during divorce proceedings.
One of the divorcing spouses may “buy out” the other for his or her share of the home or offer other assets or property in exchange for rights to the marital home. If you expect to divorce soon, a divorce attorney is your best resource to find out what to expect when it comes to your right to remain in your home.