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Can Minor Children Stay in Family Home After Divorce?


It is possible for the party who has custody of the minor children to stay in the family home after the divorce becomes final. However, a judge must first make a determination that the party requesting to remain in the house is able to meet all of the financial obligations for the home, in addition to all other day to day financial obligations.

Your Orange County divorce lawyer at Brown & Charbonneau, LLP will explain how these laws apply to your divorce and will do everything possible to help ensure your finances and important relationships are protected.

Assuming a judge finds that you can financially maintain the home for a deferred period of time pursuant to Family Code §3801, and that a deferred sale of the home will minimize the adverse impact of dissolution of marriage or legal separation of the parties on the child, a judge must also consider the following:

• The length of time the child has resided in the home.
• The child’s placement or grade in school.
• The accessibility and convenience of home to child’s school, child care.
• Whether the home has been adapted or modified to accommodate any physical disabilities of a child or a resident parent in a manner that a change in residence may adversely affect the ability of the resident parent to meet the needs of the child.
• The emotional detriment to the child associated with a change in residence.
• The extent to which the location of the home permits the resident parent to continue employment.
• The financial ability of each parent to obtain suitable housing.
• The tax consequences to the parents.
• The economic detriment to the nonresident parent in the event of a deferred sale of home order.
• Any other factors the court deems just and equitable. ( Code 3802 (b)).

Once the above determinations have been made, and the judge makes an order deferring the sale of the home, the judge’s order must also state the duration or length of time of the deferred sale.  In other words, the “deferred” period is not indefinite and there must be a specific time that it ends and allows the spouse not remaining in the house to receive his or her postponed equity from the sale of the house.

Can My Minor Children Stay Home After Divorce

Unless the parties enter into an agreement the deferred time period may be  terminated if the party remaining in the house remarries or if there is a change in circumstances affecting the financial ability of the party remaining in the home to meet the obligations related to the house or other factors affecting the economic status of the parties or the children on which the award is based, “a rebuttable presumption affecting the burden of proof, is created that further deferral of the sale is no longer an equitable method of minimizing the adverse impact of the dissolution of marriage or legal separation of the parties on the children.”  Fam. C §3808.

Although the primary financial responsibility for the family home will fall on the parent remaining in the home, a judge may make an order specifying the parties’ respective responsibilities for the payment of the costs of routine maintenance and capital improvements on the home.

Once the judge makes an order to defer the sale of home, the Court is mandated to reserve jurisdiction to determine any issues that may arise at a later date regarding the deferred sale.  The judge’s ongoing jurisdiction will include, but is not limited to, making orders regarding the maintenance of the home or tax consequences to each party in reference to the home.   And, unless the parties agree in writing otherwise, a deferred sale of home order may be modified or terminated at any time at the discretion of the court. For immediate help with your divorce need, call us today at 714 505-3000. Se habla espanol. You can also email our family law department at