If We Get a Divorce, Do I Have to Move Out?
Jan. 6, 2023
Although not unheard of, continuing to live in the same residence after a divorce is a rare occurrence. However, if you have share minor children, that connection could create some interesting living arrangements after your divorce is final.
So, who decides who gets to stay in the home you acquired during your marriage, and who has to move out? The answer can be complicated. There are multiple factors that determine a couple’s living arrangements both during the divorce process and once the divorce is final.
If you are thinking about getting a divorce or have been served papers in Corpus Christi, Fort Worth, or Dallas, Texas, turn to us at The Torres Law Firm. Our family law attorneys can help you navigate the legal process to achieve the outcome that best fits your needs.
What Are Key Considerations for Staying or Moving Out in Divorce?
There are three key factors you should consider in deciding whether you want to stay in the home after divorce or not, and what the court will decide in making its final decision. Those considerations are safety, children, and comfort.
The safety of you and your children is paramount. If your spouse has verbally, emotionally, or physically assaulted you or your children, you should ask the court to remove your spouse from the home and issue an order of protection. During the divorce process, such abuse will likely get worse, as emotions tend to run high and tempers flare.
Furthermore, if you have been the victim of spousal abuse, you may want to relocate to a place where they cannot find you. In these cases, surrendering residency in the marital home is in your best interest.
In divorces involving minor children, their best interests will be dominant in the court’s decision-making process. Divorce is usually extremely upsetting for kids, so in many cases, it may be in their best interest to protect them from as much change as possible.
If the children are accustomed to one parent as their primary caregiver, you and your spouse could work out an agreement regarding occupancy of the home during the divorce. Ask your divorce attorney in Texas to put such an agreement in writing to make it enforceable. Who gets to remain in the home after divorce may depend on the parent awarded primary custody of the children.
Comfort is the third key consideration. Of course, the comfort of the children is critical, but so is yours. Homes can be emotional attachments for many people. However, if you will be unable to afford the home on your own after the divorce, you should consider the implications that financial stress will bring. You should only fight to remain in the marital home if you are comfortable with the mortgage, utilities, maintenance, and memories you will face if you stay.
What Are the Options for Staying or Moving Out?
You staying in the marital home and your ex moving out, or vice-versa, is not the only option for post-divorce living arrangements. The following depict more options you may want to consider:
Both of you remain in the home after divorce. Particularly with large homes with significant space or ones with self-contained apartments, cohabitation with different rules may be a favorable option for you.
You both may choose to vacate the home, sell it, and subject the profit to marital division.
One of you can buy out the other spouse’s interest in the home. The home would be valued, then you could include a buyout based on that value in the property division agreement.
You may choose to refinance the mortgage to remove your spouse’s name from it. This could provide some cash you can use to pay the other spouse’s interest in the asset or lower your mortgage payment to make if more comfortable for you after the divorce. Keep in mind, however, that taking their name off the debt does not take it off the deed. They will need to execute a quitclaim in order to do that.
A final option is what is referred to as “bird-nesting.” In this arrangement, you and your spouse agree to maintain joint ownership of the home and your children continue to reside there. Per the parenting plan, you and your spouse switch off living there during your designated time to spend with the children. This plan is the least disruptive for the kids, however, you would need to financially support both the marital home and a new one for you. If you have family or friends to live with, this could be a viable option.
Keeping the Home
The person who stays in the home during the divorce process does not necessarily get to stay once it is final. Neither does the person who leaves during the process forfeit their right to maintain ownership once the marriage is dissolved. That will be determined by agreements regarding the division of marital assets and debts.
Since the home is usually the most significant marital asset, division of its value is ultimately a matter for the court. Texas is a community property state but, unlike other states, the judge can divide property in a manner it deems just and fair rather than strictly 50/50.
Turn to Trusted Legal Guidance
You can trust the family law attorneys at The Torres Law Firm in Corpus Christi, Texas, to not only provide you with experienced and knowledgeable legal guidance. We also provide compassionate support to you in the decision-making process and will fight for you when you choose the best course of action regarding your home.
Reach out to us at The Torres Law Firm today to schedule a case consultation. We look forward to working with you.