Who Should Move Out of the Family Residence During Divorce?

Many couples who are married own a house together. In the state of California, under community property rules, this house belongs to both spouses in almost all cases. If the house was purchased or acquired during the course of the marriage, then both spouses have an ownership stake in the home. This is true even if only one spouse was working and paid for the house. The only time that a house belongs solely to one spouse is if it was purchased prior to marriage or if it was purchased with entirely separate funds and put in one name only.

Because both spouses have an ownership interest in the house, neither spouse can be made to move out of the family residence during divorce.  Since divorce can take weeks or months, this can create an uncomfortable situation. You may no longer wish to continue living together once you have decided you don’t want to stay married, but neither spouse can force the other to leave.  An experienced Irvine, CA divorce lawyer can help you to understand your options and decide who should move out of the family residence during divorce.

Who Should Move Out of the Family Residence During Divorce?

If neither spouse is willing to voluntarily leave the family residence during divorce, then you will need to continue sharing the home together.   You can only compel your spouse to leave if the home is considered separate property or if you can prove abuse or domestic violence occurred and can obtain a restraining order.

If your spouse will not leave and you are uncomfortable continuing to live in the house, then you can choose to leave the home. This will not forfeit your right to get the house in the divorce. The division of property in divorce occurs by agreement if you and your spouse can negotiate a divorce settlement. If you cannot come to an agreement, the judge applies community property rules to divide up the marital estate so each spouse gets an equal share. Even if you have moved out of the house, you could argue that the judge should give you the home in the divorce. There is no guarantee this will occur, but your lack of possession does not disqualify you.

If you do decide to leave your home, then your spouse obtains a financial benefit from staying in the house. This is factored in when the marital property is divided up and you may get more of the property to compensate you for the fact that your spouse was able to stay in the home.

If you don’t want to leave, then you and your spouse can try to work out an agreement regarding who should stay in the home. You can seek a legal separation in some cases to get help from the courts in deciding what should happen to the property while the divorce is pending. You can also try to compromise and think about what is best for your family. For example, if you are going to continue to care for the kids, it may be best for you and your children to stay in the family home.

An experienced Irvine, CA divorce lawyer can help you with the issues that arise as you end your marriage, including deciding who should move out of the family residence during divorce. Call today to schedule a consultation and learn more.