Whether you are opting for a divorce or separation, it can be emotionally distressing at times. Whether you want to get separated from your spouse emotionally or physically, things can quickly take a turn in situations when you realize who gets to stay in the house during separation.
Not only the marital house, but couples also have to decide about mortgages, alimony, custody, and many other financial and non-financial issues in the wake of divorce. In the United States, family law protects the rights of a spouse when there’s a divorce event. Especially when there are children involved. Regardless of whether the couple is married or in a living relationship, the right of owning the house or staying in the house during a separation is evenly stressful.
If you have been living with your partner under one roof, sharing the bills, and responsibilities for several years, what right do you entail if you split? The post today will delve into everything that you need to know about property rights before you actually split.
Who gets to stay in the house during separation?
In 2020, the divorce rate in the US was estimated at 2.3 per 1000 of the population. There are more benefits of marriage than just getting separated and living a separate life. Marriage entails a certain range of assets and properties that both spouses share. Many spouses obtain joint accounts and pension contributions over the period of a lifetime. It becomes crucial when it comes to owning a property. One spouse cannot simply own it or cannot legally tell the other spouse to leave. This is because whether your spouse’s name is on the mortgage, you contribute to the bills and other responsibilities of the house.
For claiming your rights in these scenarios, you can register your rights of a matrimonial home in the land registry. This will eventually protect your rights and financial interest meant to be taken out from the home such as the mortgage. Also, the property cannot be sold or transferred to anyone else without taking your consent.
The 1996 Family Law legislation conveys the following home rights to spouses:
- The right to be in the same house until the court order compels
- If you already have moved out, you have the right to request the court to allow you to return
- The right to have every knowledge if your mortgage lender has taken any repossession action
- The right to know and be part of any mortgage action taken by the lender
- If the other party (spouse) stops paying payments, then the right to pay the remaining payments.
The above rights will prevail until the divorce or separation is concluded. During the divorce, there can be a discussion about diving into the assets and the responsibilities of the mortgage payments and property.
Property rights of a house when children are involved
The family issue becomes more complex when there’s a separation or divorce between individuals and are children involved. The point that makes the decision crucial involves the custody of the children, visitation rights, financial matters, etc.
For children, witnessing parents getting separated or divorced can be emotionally and mentally stressful and becomes a life-altering experience. The court takes children’s interests more strictly and keeps their well-being on priority.
In these cases, where there’s a land or property issue, the parent considered a primary caretaker of the children or who spends more time with the children will get the verdict of staying at the matrimonial home with the kids.
This can be the case when you and your partner are already living apart and just separating in terms of moving ahead. But what if spouses live together and both have children’s fondness and want to keep themselves attached to them? In this case, the court allows parents to reach a mutual agreement. If they cannot, the court will issue an order which will be in the best interest of the children.
In order to make a beneficial decision for children, the court will do everything to minimize their stress and trauma. Matters can be into a more complex situation when a parent is given the right to stay with the children and in return, they have to be deprived of all other mutual rights they entailed during the marriage. To have a fair share, it is important to contact a family attorney. He will advise you on getting a fair solution where you may have the right to stay with the kids and have the assets distributed fairly.
Property rights of a spouse when both own the house
When both parties are named under the mortgage agreement, it is not that easy to tell the other spouse to leave the place. Because both spouses have an equal right to it and they mutually ‘own’ the house.
However, in the event of a separation or divorce, it is unlikely that you want to share the house with your spouse. If this is the case, then a few things can be applied to resolve the issue with mutual understanding while maintaining ownership:
- Spouses can work to sell the house and have an equal share
- One party buys the share of the other party
- When children are involved, parents living with the kids can apply to avail themselves of the option of ‘buying’ the other parent’s share when children reach adulthood.
In situations where the couple lives on rental land, it is essential to remove the other partner’s name from the tenancy agreement as soon as the separation or divorce is concluded. This will help both the tenants and the landowner in a way that the residing party will be responsible for paying bills and other liabilities even if the joint tenant requests to quit. From this name removal, the property owner will assume that not both but one party is withdrawing from the tenancy agreement while keeping the other party responsible.
Property rights when individuals are not married
If couples aren’t married but share a single roof, then on separating, the property rights can be different. No matter if a couple is living together for six years or six months, if only one party is contributing in rent and paying the bills, then staying home during the separation or divorce rights can become murky.
And then again, regardless of the duration that you spent living together unmarried if you don’t have your name in the mutual tenancy or mortgage agreements, there is no right that you can claim on a home.
Although, this may not be that straight and clear. If a party proves that they have a certain interest in the property, they can claim the right and situations can quickly turn the other way.
The individual can claim the equity rights in the property and stay for a short term in the house even if they don’t own the party. For example, if one party pays the mortgage and has the name in the agreement and the other party pays the bills. The bill managing party doesn’t have to prove through documents that they have been doing it for a period to claim the interest in the property in question.
Pros and cons of staying in the house during separation
Staying in the home during your separation or divorce entails some advantages along with its downsides. Let’s start by discussing its advantages first;
- Staying in the house during separation will provide you time to think about your children’s stability
- Give other members of the family (elderly individuals such as grandparents and other relatives) time to move from the house.
- Will be one thing that you have to worry less about during divorce/separation proceedings
- Provides you time with searching for a good price for your home or seeking an estate agent who can help you bring a good price if you decide to sell the house or buy your spouse’s share.
In the downsides, it includes;
- If you were a dependent partner, it may get difficult for you to bear the expenses of the house along with the mortgage payments alone.
- Emotional pain – If you asked for a divorce when you found out that your spouse was cheating on you.
- Difficulty in coping with the house and children’s needs alone.
Can you sell the house after divorce?
In events when both partners own the house, after divorce, there will be two options. Sell or stay. Either way, you have to get the property appraised first. You and your spouse need to know the cash value of the house. It is also important for both spouses to make the assessments and arrangements of the yearly and monthly expenses of the house. Such as insurance, mortgage payments, and upkeep. Choosing to stay in the home during or after divorce would be a financial mistake for some.
If you choose to stay in the house, this can provide you the advantage of having a majority of custody and you think this way your children won’t have to deal with the stress of their parent’s separation. Moving to a new home means a new school for them, new friends, and a new atmosphere that may affect their health.
On the other hand, it can be stressful for you as well. It gets tough to get out from the trauma of being in a happy relationship with your spouse when they were not cheating or loved you unintentionally. Also, the staying parent might not be able to bear the monthly outlays and mortgage payments. Experts in family law put pressure on the fact that for children’s people are more important than places. It bothers them more to see their parents worrying about paying the bills and expenses.
If you choose to sell the house, this also has two sides to look upon. Selling a house will be a wiser decision for a couple who fights hard to decide who gets to stay in the house during separation. In this way, a lawyer can help you get the best price for your money and decides how the fair share can be divided between the parties. This will be a favorable decision for parties to get a fresh start in their lives without being burdened with the previous relationship and its associated issues.
On the flip side of the case, your house may not be in a good condition that pays you well at the end of the day. Eventually, you have to spend more than that to find a new house for your kids and a new school. This can equally put you in the dilemma of bearing the day-to-day financial crises and increasing overheads with your children.
Ways to divide property during divorce or separation
Undoubtedly, divorce is a difficult decision. For some, it is a relief and for some, it’s an ugly tear. It’s best to set aside your emotion while dividing the property. Even if deciding who gets to stay in the house during separation is getting difficult for you, then there are legal ways that you can opt for resolving the issue by mutual considerations.
For a fair share, you can opt for any of these ways of dividing the property during a divorce or separation;
- Sale – Sometimes, it’s easier for couples to sell all the stuff including the house and divide the share equally and leave the past as it never happened. If things are the same for you, you can easily choose to sell everything and divide the value.
- Asset division – If selling the house or valuable goods doesn’t excite you, you can divide things like furniture and vehicle, etc.
- Make exchanges – If your spouse chooses to have furniture and your car in exchange for a house, deal for exchanging other things according to their value.
- Auction or bid – You can also plan an auction for your house and stuff and decide to have an equal share of the price.
- Mediation – If any of the options brings no success, then you can try having a third-party suggestion from a non-emotional perspective. By putting a mediator in-between, you can hope to have a fair share of everything in question.
- Arbitration – If mediation doesn’t work for you, seeking arbitration might help you last. This could be an efficient decision if you don’t want to see the court for your asset and property division. You and your spouse will be allowed to present arguments and you have to accept what an arbitrator will decide.
Who can help you more? A Divorce attorney or an Estate agent?
Eventually, you will need the help of both attorneys. But first, you must contact a divorce attorney who may guide you about your financial possibilities and the associated consequences if you proceed with the asset division and your legal right on the matrimonial house.
If you conclude that selling the property at a good price would be a wise decision, then you can contact an estate agent. You may need to explain everything about your divorce and why you need the money to be provided in a certain time period and the asking price.
Irrespective of your decision of selling your house or buying your spouse’s share, you need to go through a legal process in order to prevent yourself from legal bindings in the future.
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