iBuyer Real Estate Blog

Who gets to stay in the house during divorce? 

Mark Weibel

couple visiting divorce attorney

Divorces come in all shapes and sizes. Every divorce is unique and depends on the context. 

One couple may have a lot of hostility between one another due to an extra marital affair. Another couple may just be two people slowly drifting apart. What’s more, some may even have children involved which generally further complicates things. 

If you’re wondering if you can stay in the marital home during divorce, there is of course no straightforward answer. 

Sometimes only one partner will live in the house, while other times both partners will co-live during divorce. Or, both may decide to leave and be away from the environment they once shared together. 

One thing is certain though: if you are the “disadvantaged” partner in a marriage, don’t assume you’re the one who has to leave the house in a divorce. 

Since divorces can be lengthy and costly, it’s important to understand what your options are with regards to who stays in the house during a separation.

Who decides who gets the house during a divorce? 

divorce lawyer conversation

Finding somewhere to live after you and your partner have agreed to split up can be stressful. Your life may already feel like it’s falling apart and losing your home could make matters even worse. 

So, deciding who gets to stay in the house during divorce is often one of the most difficult things a couple has to do. 

If both parties are willing to negotiate, then a compromise could be reached amicably. If not, that’s when things can get messy as there will be judicial intervention. In other words, a judge will be the one to decide who stays in house during divorce. 

While it’s better to settle matters before it reaches court, you should be aware of what your rights are in the situation. A common misconception that could result in unfair deals is that the spouse whose name isn’t on the title deed is often the one who has to leave the house in a divorce. 

But, the reality is much more complicated, so let’s explore the matter more thoroughly.

Why is it difficult to decide who gets the house during divorce?

child in divorce fight

From financial incentives to emotional attachments and convenience, there are a number of reasons to want to stay in the house during divorce. Both partners may feel entitled and not want to lose out, which is what can make the negotiation process so draining. 

Adding children into the mix usually doesn’t make it any easier, because there’s a third party’s interest to consider as well—a third party dragged into a complex situation out of no fault of their own. 

Though there’s no one size-fits-all approach to what children need, so your situation should be carefully considered.

Some theories say that children should stay put in their homes as they need the stability. Others believe that they may actually benefit from a change of environment, as that could help them accept their new reality of living with a single parent. 

Judges tend to lean towards ensuring that the parent who is the primary caregiver of the children is also the one who gets to stay in the house during divorce, regardless of whether their name is on the title deed. 

But, at the end of the day, only you and your partner will know the best decision for your children, so keep that in mind when negotiating and try to come to an amicable decision rather than letting it get to the courts.

While it may be difficult to come to a decision, try your best to keep emotions at bay and think rationally about the situation. 

What factors influence who keeps the house? 

keep house in divorce

Now that we’ve established that there’s no clear-cut answer to who stays in the house during divorce, let’s go through the factors that can increase your likelihood for staying. 

If you’re asking the question most people do—do I have to leave my home in a divorce?—ask yourself the following questions to find out the probable answer:

  1. What rules are your state governed by?

    Most states are equitable distribution states, while a handful are community property states. To understand the difference, let’s define marital and separate property. 

    Marital property is one that was bought during the marriage. 

    In a community property state, marital property belongs to both spouses, regardless of whose name is on the title deed; and the equity is split 50/50. 

    In an equitable distribution state, property division is more complicated and, if you can’t decide with your spouse, the courts will come in and decide for you. Though they’ll attempt to be fair, each spouse isn’t guaranteed 50% of the assets. 

    Separate property, on the other hand, is when one spouse bought the house prior to the marriage. In this case the home belongs to them if their name is on the title deed. 

    But, of course, there are exceptions. If the non-owner spouse contributes to mortgage payments and home maintenance then they could claim stakes on a separate property as well. 

  2. Are you financially dependent on your partner?

    If you’re the financially dependent partner, then you may worry that you’ll be the one who has to leave the house in a divorce. With nowhere to live and no means to support yourself, that may put you off the divorce process altogether. 

    But don’t fret, homemakers are usually given adequate time to find a job. In the meantime, you’ll likely be allowed to stay in the marital home. If by chance the judge doesn’t rule in your favor, there’s always a chance to file a petition to get temporary possession of the home. 

  3. Is there domestic violence involved?

    Who stays in the house during a divorce might come down to domestic violence, as these situations typically give victims access to the house. 

    It may also result in an ‘order of protection’ or a restraining order against the abuser. If that order is violated, it can result in an arrest. 

    What’s important to note here is that domestic violence can be defined very differently depending on the state. In Arizona for instance, even things like aggressive phone calls, emails, or texts can be considered domestic violence. 

  4. Are there children involved? And if so, are you the primary caregiver? 

    As mentioned previously, the courts prioritize the stability of children. 

    So, if you’re the primary caregiver of your children, then chances are you’ll be allowed to stay in the house during divorce. You can, of course, also willingly choose to leave the house to live elsewhere, if you feel that’s the best thing. 

    Again, if a decision can’t be made between the couple, a judge will decide for you, but a judge only comes into the picture when a decision can’t be reached between the couple. 

  5. Were you the one who stayed in the house during separation?

    When arguments escalate between a couple, it is not uncommon for one partner to move out in a haste. Often this is the man, and often this can backfire, because moving out early could be grounds for “abandonment” and might lead to disadvantage in the divorce proceedings.

    So, it’s important to realize that who stays in the house during a separation is purely voluntary—you’re not legally obliged to leave, unless the courts make you. 

    And, if it’s the court order that made you leave, you can’t be accused of abandonment or assigned blame in that way. 

What concerns are there with regards to staying or leaving? 

financial concerns

Instead of asking yourself if you have to leave your home in a divorce, you might instead consider whether staying is the best thing for you to begin with. 

Common concerns are financial ones. 

Staying might be the default option, but you might have overlooked the maintenance and upkeep of the home. Don’t forget the mortgage either, if that hasn’t yet been paid off. 

Typically, such items are paid for by the spouse living in the house. Though sometimes, the spouse who previously paid such items (usually the higher earning spouse), may be required to continue paying. 

If the mortgage has been paid off, or the rental value is higher, the spouse with access to the house may also need to make monthly payments to the other spouse. That’ll typically come to half the difference between the monthly rental value and the monthly mortgage payment.

So, don’t assume that staying is the cheapest option either and, likewise, that you will be free of house related debts if you leave your home in a divorce.

And, we haven’t even begun to talk about the emotional concerns yet. Staying might feel like a big win over your partner, but might make it difficult to move on for a fresh start. 

What are the options for dividing the house?

life after divorce

Whether you decide to stay or leave, at some point you’ll be wondering how to “split up” the house after the divorce. 

The first step is to find out the value of the house. To do this you can hire an appraiser, or get a quick home value estimate online. Once you know the approximate value of your home, you’ll be in a better position to negotiate. 

Option 1: One spouse remains and the other leaves

In this case, the one who stays has to ‘buy out’ the one who leaves. They may need to refinance the house. The spouse staying also needs to ensure they can secure adequate sources of income moving forward. 

Option 2: Co-living

Who says either of you has to leave your home in a divorce? 

You can choose to co-live by creating clear boundaries and dividing communal spaces. Don’t forget to talk about chores and bills. This frees you up to focus on other things and sell your home at a later date if you decide to do so.

But, also bear in mind state laws regarding divorces, as some states will require spouses to be physically separated for an amount of time before finalizing the divorce. 

Option 3: Both leave

If both are leaving the home, then the best thing to do is to sell and divide the money. 

You can go with realtors, but that may take more time and effort. You’ll probably have to deal with things like home upgrades, staging, and house showings which might not be what you want to deal with in the middle of a separation.

One way to make things simpler is to go with iBuyers as an option to sell during divorce, as it’ll be a quick and convenient process. You’ll also get an instant all-cash offer, which can free up your time and provide a quick cash infusion at an otherwise stressful period of your life.

As we’ve established, divorcing couples often ask the question “can I stay in the marital home?” and the answer isn’t straightforward. It depends on your circumstance, your state, and your ability to negotiate amicably with your spouse. 

It’s also important to consider that staying might not always be the best option. Quickly selling and dividing up assets may be best so that you can stay somewhere more affordable, have a lump sum of cash, and move on to the next chapter of your life.