Who Gets the House After Divorce?

Two hands gripping a yellow model house with grey roofIn the midst of a divorce, assets are divided, one of the most valuable both financially and emotionally being the marital home. In some cases, there is a mortgage left on the house and many emotions involved with who will take care of things given the circumstances. Divorce is already laced with turmoil and so it is important to understand what direction you can take in regards to your house. If the house is joint marital property, you should never assume that you will just be able to kick the other spouse out of the home. Here are some of the options you may have, depending on your specific circumstances:

  • Both Parties Keep House: After a divorce takes place, two spouses may decide that they want to share the house. This is typically to give the children a stable home until they turn 18. If you decide on a co-ownership situation, it should clearly be stated that the costs of house payments, taxes, repairs, and more will fall on both of you in certain ways. However, there are many risks with co-ownership. If on spouse makes late payments, both credits may be affected. This is why everything should be assessed from start to finish.
  • One Party Keeps House: What happens if one partner keeps the home? Then the house must be refinanced to remove the other spouse from financial obligation. The date must be stated on a document by the judge. The spouse who gets to keep the home should always find out if they will be able to qualify for a mortgage to keep up with payments.

When You Are Able to “Kick Out” a Spouse

So, under what circumstances are you permitted to kick an ex-spouse out of your marital home? Something known as the Dwelling Exclusion Order comes into play. A judge must sign off on this very important order that allows you to legally exclude your spouse from your home so that you are permitted to obtain sole possession. If you meet certain requirements under California Family Code 6321, your lawyer can approve this order. This is specifically vital for cases of domestic abuse, where one spouse must escape the turmoil. What must be shown to obtain an exclusion order?

  • You have a right to possess the home.
  • You have been assaulted or verbally threatened by your ex-spouse. Your child could be included in this as well; if they have been threatened, this could count toward an order.
  • Your case could result in serious harm if it is not granted.

As stated previously, the court will be reluctant to grant you an order, which is why you should have a skilled attorney on your side. At something known as an “ex parte hearing,” you will be expected to show cause on why your order should be granted and what could happen without it. Having sworn statements and witnesses could help you during this time. Many emergency situations have helped divorcees out in this situation. However, having an attorney is your best bet. At The Law Offices of Amy M. Montes, we can help you stand up for your rights after a divorce has spent your life into turmoil. Call us and let us help you in your time of need.