How Does Marital Residence Change During Divorce?
Divorce is complicated in many ways, both legally and emotionally. When the law and emotions intersect, situations can become hectic, which is common when dealing with divorce. One of the biggest issues where the law and emotions can conflict is when deciding who has to leave the house.
During a divorce, the couple’s house ownership is decided. Uncontested divorces usually take about three months, while contested ones can last up to a year. That means there is a significant period during which one spouse may be expected to leave the house.
But who is that? The family law attorneys at C. Alvarez Law explain which spouse is expected to leave the house in divorce.
Housing Ownership is Complicated
The truth is that your living situation is complicated in the early stages of a divorce. There are some simple ways to know when someone should leave home, but these are not common occurrences.
It’s common for both spouses to continue living together for long periods during the divorce while they determine their living situation. Both spouses commonly have equal claim to the house, and when the economy has made divorce so expensive in many areas, people can’t afford to live in separate homes.
This means that most of the time, no one has to leave the house while the divorce is proceeding; instead, most people have to live together.
When Does One Spouse Have to Leave the House?
It’s a common mistake to say that the wife always gets the house. This stems from the fact that the wife is more likely to be the caretaker of the children and so the children can stay in their home, the husband leaves to keep the peace.
Co-parents can often agree on custodial custody because they can agree on the best interests of the children. This doesn’t mean that there will be no argument or legal battle to resolve the issue of child custody. Rather, this means a court will not have to intervene to decide for the parents.
This means there is no legal precedent that the husband has to leave or that one parent gets to live in the house during the divorce. However, there are certain situations in which one spouse can legally force the other out of the house.
When Only One Spouse Owns the Marital Residence
Houses bought by both spouses together or purchased during the marriage are considered marital property. Even if one spouse’s name is on the deed, if they are married, the other can still claim or sue that they are equal owners.
But, there are some cases where only one spouse owns the home and/or the other spouse is legally removed. In these instances, one spouse can have the other removed without a divorce being filed.
- When one spouse inherits the home: Assets that have been inherited are not marital assets. For example, if a husband inherits his family home from someone, such as a parent, the husband gets the house. This is true even if they inherited the property while they were married, and if the will/trust that passed down the property was written while the beneficiary was married. In this instance, the spouse who inherited the house wholly owns it and can force the other to leave.
- When one spouse purchased the home before marriage: If a house was purchased before the marriage, it is not grandfathered in as marital property. The owner can then legally force their spouse to leave the house if they so choose.
- When one spouse has been given ownership of the home in a prenuptial agreement: A spouse can sign away their rights to a house the couple purchases in the future with a prenup or postnup. If one spouse does this and they file for divorce, the spouse the agreement deems to be the owner can force the other to leave. This can be overturned if the prenup or postnup is found to be invalid.
When One Spouse Files For Emergency Custody or a Restraining Order
If one spouse proves to be a danger to the other or the couple’s kids, they can be legally and forcibly removed from the home. In this situation, they can also be forced to stay away from the spouse during court proceedings.
- Emergency Custody Order: If a spouse believes the other spouse is a danger to their children, they or an attorney can file for an Emergency Custody order. Once granted, the abusive spouse is legally required to remove themselves from the residence, regardless of ownership status. They must also relinquish custody until a hearing, as well as any firearms, and maintain their distance from their spouse and children.
- Restraining Order: If one spouse has assaulted or threatened the other with violence, the spouse can file for a restraining order. If granted, the offender must leave the residence of the filer and maintain their distance until a court appearance can be scheduled.
If you need assistance with filing important documents, such as those for an emergency custody order, C. Alvarez Law can help.
Important Documents to Reference When Debating Marital Residence
When addressing the legality of a marital residence—whether during a divorce, separation, or other legal proceedings—several key documents are essential to establish ownership, rights, and responsibilities. These include:
- Deed or Title: Both documents establish ownership of the property and whether it is jointly owned, individually owned, or held in another arrangement.
- Mortgage Documents: These documents include the loan agreement, payment history, and any refinancing records, which show financial obligations tied to the property.
- Prenuptial or Postnuptial Agreements: If applicable, these documents may outline how the marital residence is to be handled in the event of a divorce or separation.
- Property Tax Records: These records demonstrate who has been paying taxes on the property, which can be relevant in determining financial contributions.
- Home Appraisal or Valuation Reports: Reports can provide the current market value of the property, which is crucial for equitable division during divorce.
- Utility Bills and Maintenance Records: Records show who has been responsible for ongoing expenses and upkeep of the home.
- Lease Agreements: If the marital residence is rented, the lease agreement outlines the terms and responsibilities of the tenancy.
- Insurance Policies: Homeowner’s or renter’s insurance documents can provide details about coverage and ownership.
- Bank Statements or Payment Records: Evidence of who has been making mortgage or rent payments, which can impact claims of ownership or contribution.
- Court Orders or Legal Agreements: Any prior legal rulings or agreements regarding the marital residence, such as temporary orders during separation.
These documents help clarify ownership, financial contributions, and legal rights, which are critical in resolving disputes over the marital residence.
Contact C. Alvarez Law For More Information About Your Marital Residence
If you’re planning to file for divorce but are nervous about losing your housing in the meantime, contact the family law attorneys at C. Alvarez Law. We have extensive experience with divorce and family law.
If you have kids or are in an unsafe situation, our attorneys have the knowledge necessary to help you ensure you and your family have a roof over your heads while you complete your divorce. Schedule a consultation with us today.

C. Alvarez Law

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