Your attorney will probably advise against it if your marriage is ending and you ask if you can move out of the house before the inevitable divorce is finalized. He’s not worried that you’ll lose legal rights to the home, but other complications could result. When it comes to divorce, home is no longer a matter of where the heart is. It’s just one more marital asset and all the court cares about is dollars and cents and when the asset was acquired, not who lives where.
In most cases, a husband retains rights to a marital home. This is true whether he lives there or not.
Acquisition During the Marriage
Although there are some isolated exceptions, your home is considered a marital asset if you and your spouse purchased it after you got married. This means both you and your spouse have a right to a share in its value. It doesn’t matter if you both continue to live there, if only one of you lives there or if you both move out and lease it to a third party. Its value or equity over and above the mortgage balance, if any, must be divided between you.
“Dividing” a Home
Exactly how the house is divided can depend on numerous factors. If you live in one of the nine community property states – New Mexico, Arizona, Texas, Nevada, California, Washington, Wisconsin, Idaho and Louisiana – its value will most likely be scissored down the middle. Each spouse is generally entitled to half of all marital assets in community property states.
A court might order a somewhat different split in the other 41 common law states. The judge will order a division based on what he thinks is fair after considering all circumstances – but which spouse currently lives there would not be a consideration.
If the house is worth $200,000 and you’re each awarded half of that in a 50/50 split, one spouse might keep the house while the other receives $100,000 in other assets to compensate. The house might be sold with each of you walking away with half the profit.
Premarital Property Rights
If either you or your spouse owned the property before you were married or if you used money you earned before the marriage to purchase the property, this can complicate the situation. All things being equal, the home would go to the spouse who brought it into the marriage as her premarital property and the other would not have any right to a share of its value.
That rule isn’t ironclad, however. Some other factors can come into play. Was marital money used to pay the mortgage, insurance, taxes or for maintenance or repairs? This can give the other spouse a stake in its value, although not necessarily 50/50. It can even make a difference whether the non-owner spouse contributed labor to the maintenance or repairs. Was the premarital home retitled into the names of both spouses at any point? This can give the non-owner spouse an interest in the property as well.
If no marital money was ever used toward the home’s upkeep, the house would remain the asset of the spouse who owned it before the marriage, no matter who actually resides there at the time of divorce. Otherwise, its value would be subject to division between spouses.
Other Financial Issues
Other problematic issues can crop up even without any risk of losing your rights to the house. If you move out, you’re leaving it in the care and control of someone with whom you’re engaging in a legal battle. Your spouse might change the locks to try to prevent you from ever entering again. Important papers or assets could go “missing.” If you’re selling the house but your soon-to-be ex wants to keep it, real estate agents might find that it’s a slovenly mess every time they try to show it to prospective buyers.
And unless you move in rent-free with a friend or relative, there’s the matter of supporting two homes instead of one. And if you rent a place the size of a postage stamp to save money, where are your kids going to sleep when they spend time with you at your residence?
You won’t lose any rights you have to the home if you move out, but you could be making your life quite miserable, at least for a while, and it could affect issues like custody, child support and alimony. If you have children, you’ll probably have to begin paying child support immediately. You might not want to step out the door until you’ve had a long talk with an attorney to address your personal circumstances.
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