Many issues arise in the course of a divorce proceeding, but one of the most common (and most commonly misunderstood) relates to a couple’s marital residence. Who will live in the house while the divorce is pending? Can both spouses continue to reside there? Should they? Who’s responsible for maintaining the property (including general maintenance, payment of mortgage, HOA, property taxes, etc.)? If I move out, am I sacrificing all rights to the property?
The answer to the last—and probably most important—question is No. Many clients mistakenly believe that if they leave a house during a divorce proceeding, the other party gets it outright. This is a myth.
By moving out of the house, you don’t give up any interest you have in the property—or any other legal rights connected with owning the property. You still retain the privilege of possession and the ability to profit from the sale or rental of the house. If while a divorce is pending, one party needs to address an issue involving the house, he or she can present the issue through a motion—though a court will not generally order a sale or division of the house as a result of this motion.
In California, community property law dictates that each party is (in most cases) entitled to 50% of all community assets. While a divorce is underway, there’s usually insufficient information to determine a fair distribution of community assets, so the court won’t award the house to one party or another, until it’s clear the other party will be rewarded assets equal to the equity in the house.
When children are involved
Of course there are several factors involved in determining who should remain in the house while a divorce is pending. One of the key concerns is children.
For example, if the couple has lived in the house for the past decade, they may not want their children to undergo the emotional turmoil often involved in relocating elsewhere. In these cases, the best option may be for the mother to continue residing in the house. Then both sides must determine if she should be responsible for maintaining the residence on her own or if the father (or domestic partner) contributes to payments and upkeep.
Even when Mom stays at the property with the children, she doesn’t necessarily get more interest in that property. Any temporary arrangements made to address this issue can always be altered by a later agreement or a court ruling. A temporary order does not mean a decision has been set in stone.
As the divorce proceeding nears the end-point, the issue of final resolution of the marital residence is looked at more closely by both sides. The house can be put up for sale at any time, if both parties agree to this arrangement. Options for final disposition of the residence include:
- The wife buys out her husband and gets awarded the property to herself
- Husband buys out his wife
- They sell the house together and split the proceeds
Another possibility involves what’s called “deferred disposition.” As part of a divorce settlement, both parties may agree that, upon some future contingency, their youngest child (or any child so specified) gets the property in question.
In general, issues related to real estate should be addressed early and often during the course of a divorce. Speak to an experienced attorney to get more information on this issue.