The Family House

The family home is often the most valuable asset a couple owns. The family house is also usually tied up in the deep emotions, fears, and anger involved in a divorce. So, the fight to determine who stays in the house and who has to leave, who gets what out of the house, and what happens to the house at the end of the divorce case may involve considerations other than just dollars and common sense.

The divorce attorney and client should understand how the home and its contents are handled, valued, and divided in a divorce.

Click here for a long, very detailed article that covers every aspect of how the family home is treated in a divorce.

The family home is filled with furniture, but also memories and emotions. The client needs to be gently urged to set aside personal feelings about the house and make a divorce decision based on cold, hard facts and economics. The client needs to calculate if he or she can afford the house after the divorce. A smaller house might make a lot more sense from a financial point of view. Some clients are worried about how a move would affect their children and which school they would attend. Many people simply cannot bear the thought of all the hassle involved in moving. Some people are simply attached to their house and do not want to leave it.

A divorcing couple, with the help of their lawyers, need to consider and decide on:

• Who will move out of the house temporarily while we are getting divorced? (see detailed discussion below).
• Is the house community property and therefore an asset to be divided in the divorce? Or, is the house separate property because it was owned before the marriage or inherited or a gift? If the home is separate property, is it owned jointly or by just one of the spouses?
• While the divorce is pending, how do we pay the mortgage, taxes, insurance and bills on the house?
• How much is the house worth and how much is owed on the mortgage? The “equity” in a home is the difference between what the house could be sold for and the debt owed on the house.
• If the house is community property, when it is time to finalize the divorce, should the house be sold or awarded to one of the spouses?
• How is the mortgage treated after the divorce?

Click here for a long, very detailed article that covers these questions in depth and which covers every aspect of how the family home is treated in a divorce.

Judges and lawyers assume that it is not a good idea for divorcing spouses to continue living together while the divorce is pending, (unless the spouses agree). Very often, one spouse has already moved out when a divorce case begins, so “who should move out” is not an issue. Many times, however, the spouses are not willing to move out at the start of a divorce case. Reasons why people do not want to move out of the home include:

• Parents do not want less time with their children or they fear that moving out may hurt them in a custody fight;
• Some people cannot afford to move or pay rent;
• A spouse may work from the home;
• Many people are just emotionally connected to the house and cannot bear the thought of leaving;
• A few controlling jerks like to yell and say “this is MY house and no one is going to make me leave it.” These types learn differently and they WILL leave when a judge orders them out.

The fact is, one of the spouses will have to move out, at least temporarily, at the start of the divorce case. In the vast majority of marriages (without marital property agreements), all income and accounts of both spouses are community property, so the pay of one spouse can be used to help the other spouse move or live somewhere else or pay the bills if he or she stays in the house.

It is best if the spouses agree on who moves out and how bills will be paid at the two separate households. If they cannot agree, then a judge decides. If the judge makes the decision, at a hearing on temporary orders in the divorce, one of the spouses will be granted the temporary exclusive use of the residence and the other spouse will be ordered to move out if that has not already happened.

“Temporary exclusive use” of the house means that the house remains community property but temporarily one of the spouses gets to live in the house and the other spouse must move out and live elsewhere. The spouse who does not have the temporary exclusive use of the house cannot just walk into the family residence without permission.

Attorney Greg Enos explains the situation to clients this way:

You still are an owner of the house. You may even be awarded the house at the end of the divorce. But, temporarily, while the divorce case is pending, your wife has the sole use of the house unless she invites you in or gives you permission to come in. It is temporarily like it is just her house even though it is still your property also. Think of my house – you cannot just enter my house without my okay. It is not an easy adjustment but it is part of the divorce process.

There is no statutory or case law guidance for how a judge decides who stays in the house and who must leave during a divorce. Most family court judges will consider these factors:

• Which parent will have the temporary, primary custody of the children? Often, judges want the children to remain in the house during the initial months of the divorce, so it makes sense for the parent with primary custody of the kids to also get the use of the house.
• Has one spouse already moved out?
• Is the house the separate property of one party? This is a factor to consider, but in theory a court can allow a spouse exclusive use of a house that is the separate property of the other spouse
• Which spouse can afford the house and related payments? Of course, the court may order temporary spousal support if needed during the divorce, so usually ability to pay is not an important issue.
• Does a party work out of the house and if so, what would be the impact of moving the work out of the residence be on their job or business?
• Is there some reason why one spouse cannot maintain or repair the house (or pay someone to do so)? For example, if the husband is halfway through laying wood flooring on the entire first floor of the house, he may want to stay to get that done.
• Does a spouse have other children (or relatives) who also live at the house?

New divorce clients often ask if they should move out of the house without a court order. Some are worried that it will be “abandonment” of the property or their children. The lawyers at Enos Family Law respond to such concerns with this advice:

• If this is going to be a fight over custody of the children, you may not want to move out;
• If there is arguing and yelling or bad behavior in front of the children, it may be best to go stay with a relative or friend or at a hotel until we get before a judge.
• If there is violence or a serious threat of violence, we could seek a protective order that will force your spouse out of the house.
• A spouse who moves out of the house may still be awarded the house at the end of the divorce.

One common area of dispute between spouses when one must move out of the house involves what can be taken out of the house and what must be left. This should be a matter of agreement or at least common sense and fairness. If the children are going to primarily live at the house with the father, for example, the mother should not take out the children’s beds unless there is an agreement to do so.

Enos Family Law strongly urges its clients to make a video of a walk-through of the house, opening closets and drawers, and looking in the garage and attic so that months later they can remember what personal property they want from the house when the divorce is being finalized.