5 questions to ask when deciding who gets to keep the house
“I want my spouse out of our house–what should I do?” That’s a frequent question I hear in my collaborative divorce practice. Unless there is evidence of family violence, it’s difficult to force a spouse out of the house. There are several questions you and your spouse should consider when deciding who goes and who stays in the home. The first question is: who owns the house? Next, are there children involved? Third, does one of you want to keep the family home after the divorce? Who wants the divorce? And finally, do either of you want to date while the divorce is pending?
Who Owns the Home?
If the home is community property and there is no evidence of violence, it’s nearly impossible to legally force your spouse to move out. On the other hand, if the house is your separate property, then you can change the locks on your house and keep your spouse out. However, this tactic will lead to mistrust and anger and I don’t recommend it. Better to negotiate an agreement for one of you to leave the home than act unilaterally.
Are Children Involved?
If you have children, you and your spouse should try to negotiate temporary custody arrangements for the children. If the mother is going to have primary possession of the children, while the father has visitation, then it makes sense for her to stay in the house with the children while the father moves out. This arrangement will allow the children to stay in a familiar home, go to their regular school, continue to see their friends, and the father will be able to see his children for regular visits. The father’s apartment should be large enough to accommodate the children and close enough to make transferring them feasible. If you both own the home and there are no children, then other factors determine who moves out while the divorce is pending.
Does One of You Want to Keep the Home?
If one of you wants to keep the home after the divorce, and you are financially able to afford it, then it makes sense for that person to remain in the home and receive it as part of her/his settlement. On the other hand, if neither of you wants to keep the house after the divorce, and there are no children, then it makes little difference who stays in the house. You might decide you can live together comfortably while the divorce is pending–that’s the least expensive option. If you decide that arrangement won’t work, then one of you needs to move out.
Who Wants the Divorce?
If you want the divorce and there are no children, you are in a difficult position trying to move your spouse out of the family home. Since wives initiate most divorces, the husband may not want the divorce and he may refuse to leave his home. Unless you expect to have primary custody of the children or you own the house, it’s difficult to force him out. The best tactic is to negotiate an agreement with your spouse for one of you to move out or agree to live together during the divorce.
Do You Want to Date?
If one of you wants to date before the divorce is final, he or she must move out of the house. Dating while you are still married is difficult enough, but imagine the problems involved in dating while you are living in the same home with your spouse. That never works. So, if you want to date, move out first.
Getting a spouse out of the house can be difficult. If there are children, the best tactic is to decide on a parenting plan and allow the parent with primary custody of the children to stay in the family home at least until the divorce is final. When there are no children, then several other factors determine who moves out. If the house is owned by one party, then she/he should stay in the home and the other spouse should leave. If one of you wants to keep the house after the divorce is final, then he/she should stay in the home. Also, the party who wants the divorce may decide it’s easier to just move out to keep the peace. Finally, if one of you wants to begin dating before the divorce is final, he/she should certainly move out.