Should I Stay In The Home After Filing For Divorce?
Once the decision to divorce has been made, most spouses are no longer comfortable sharing a home. However, the process of finalizing a divorce and dividing property can take well over a year. This can lead to several difficult questions regarding what will happen to the martial home. Below is an overview of common questions and a brief discussion of how the martial home will be treated during a pending divorce.
What Happens To The Home During The Divorce?
Part of a divorce is dividing all property owned by the spouses. This includes the martial home and other real estate. As soon as a petition for divorce is filed, each spouse has an interest in the martial home. This means that neither spouse can dispose of the home at that point; instead, the court has to divide up the interests as part of the property division. Of course, a home can’t be split down the middle. So instead, the interest of each spouse will have to be otherwise accounted for. This commonly occurs in one of two ways. First, the court may allow Spouse 1 to keep the home and require Spouse 1 to “buy-out” Spouse 2’s interest. Alternatively, the court may simply order the home sold and the profits divided between the spouses.
While the divorce is pending, the court’s only initial concern will be ensuring neither spouse attempts to sell or destroy the home. The spouses are equally allowed to occupy the property until the court orders the interest divided. Almost always, the children will stay in the home with whichever parent is staying in the house. However, the court may change this status quo regarding ownership under appropriate circumstances. The most common example is when a one spouse has abused another. In this instance, the court can issue a Protection from Abuse Order forcing one spouse to stay away from the martial home and the other spouse.
Should I Stay In The House During The Divorce?
Unless the court orders a spouse to do otherwise, there is no harm done by staying in the martial home while the divorce is proceeding. However, without a court order, each spouse has an equal right to occupy and use the martial home. This means that one spouse cannot force the other off the property—even with assistance from the police—unless there is criminal activity. Common examples of such crimes include domestic violence or harassment. However, if a couple is still on good enough terms and feel comfortable with a verbal agreement, staying in the home is a viable option.
Am I More Likely To Get The House If I Stay In It?
Whether or not a spouse stays in the martial home will not determine whether that spouse gets to keep the home. The court considers ten listed factors found in Section 23-2802(c) when determining how to divide property—including who receives the house. These facts include characteristics of the spouses, such as their age, how long they were married, their earning capacities, squandering of property by a spouse, and spousal support each has been awarded in the divorce. Information about the property is also considered: how and when the property was acquired; family ties to the property; and whether the property is considered individual or martial property. The court considers the tax consequences of the property division, which can be an important consideration in terms of a home. The final consideration is a catchall, allowing the court to consider any other factor that seems relevant. Staying in the home is notably missing from these factors, and will have little, if any, effect on the court’s decision.
What If I Don’t Feel Safe In The House Because Of My Spouse?
As mentioned above, the default rule during a pending divorce is that both spouses have equally, simultaneous access to the house. One spouse cannot force the other from the home or prevent the other from entering the home, such as by changing the locks. When one spouse is threatened or otherwise in danger because of the other spouse, the court can change this default rule to temporarily prevent the aggressor from staying at or entering the property. This is accomplished by seeking a temporary Protection from Abuse Order under Section 60-3107. Such an order forces the abuser to stay away from the other spouse and any children of the marriage. Generally, the order will also keep the abusive spouse away from the home. However, the order may require the abusive spouse to pay for alternative housing instead of vacating the home. This decision will depend upon the circumstances of each case.
A Protection from Abuse Order is only appropriate in select circumstances. First, an order is appropriate when physical abuse or the threat of physical abuse exists. The abuse can be directed at the other spouse or at children of the marriage. In the context of punishing children, an order is appropriate when the abuse causes substantial physical pain or impairment. Sexual abuse qualifies as physical abuse under this statute. The court will not issue such an order when emotional, verbal, or mental abuse exists. This is true even in very extreme cases of emotional abuse.
The decision to stay in the martial home is a difficult one to make. Several factors influence this decision. However, in this instance, the law tends to stay out of the issue. Unless physical abuse is at issue, the decision is largely left to the parties to work out. Further, the initial decision of whether to stay in the house has little pull on the outcome of the divorce, including which spouse gets to keep the home. Contacting an experienced attorney is essential to weigh the pros and cons of staying put or moving out while your divorce is pending. If you have questions about divorce or other family law issues contact the experienced Johnson County divorce attorneys at Copley Roth & Davies.
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