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Divorce and the Marital Residence

The use of the marital home before a divorce can be settled is frequently the subject of great dispute. What’s the process for one person to obtain exclusive use of the home? How will the staying party pay for the home if they cannot afford it? Does leaving the home mean that person forfeits their right to it in the final divorce?  What if there are safety issues? Find out the answers to these questions and more, below:

When you file for divorce or legal separation, the judge in your case has the authority to issue temporary orders that will be in place while the ultimate settlement of the case gets worked out. One of these orders can be that one person or another is allowed to stay in the marital home while the other person lives elsewhere. This is called giving one spouse “exclusive use” of the marital home. 

A temporary order entered by the Court allowing your spouse to have exclusive use while your case moves forward does not harm your claim that it should be ultimately awarded to you. It’s just a stopgap measure to stabilize things until you can settle matters.

The Court can also make temporary orders regarding payment of the mortgage and other housing expenses as part of a request for exclusive. If you are entitled to spousal maintenance or child support, then payment of housing expenses may be part of a temporary order for support.  There are other options for arranging payment of those expenses, even if you are not entitled to support; for instance, your spouse could pay the mortgage and you could agree to equalize these payments in the final settlement.

You should consult an attorney experienced in handling domestic violence issues or seek out domestic violence resources in the community before filing for divorce in order to discuss your options. It may be appropriate to get an Order of Protection (called an OOP), which can be done without notice to your spouse. An OOP can require your spouse to leave the home. An OOP is separate from a divorce or legal separation proceeding and should not be used as a substitute for the appropriate divorce court order regarding living arrangements and parenting time if you have minor children. 

No, you do not have to wait until the divorce is final. If you both agree, you can list the home for sale at any point before or during the proceedings. You should speak with a family law attorney regarding how the proceeds of the sale are to be distributed. 

Message from McCarthy Family Law​

McCarthy Family Law is a full service family law firm that services all family law issues. If you are going through a divorce or have questions about filing for divorce, we are here to assist you. Please call us at 520-623-0341 to explore your options. Turning Stress Into Solutions®.