Should I Stay or Should I Go? It may be the title of a great song, but it's a tough question you may be forced to answer in a divorce. Ultimately, the answer depends on your goals, resources, and children's needs. Separating an emotional attachment to a home is difficult, but you have to approach the question the same way you would if it were strictly a business decision. That may sound cold and calculated after you've lived in a home a long time, created many memories, and raised children there. But unfortunately, in a divorce situation, it isn't practical to continue sharing a home with your soon-to-be ex-spouse.  

Factors to Consider.

So, should you stay, or should you go? Considering the following may help you answer this difficult question: 

• Is Domestic Violence an Issue? 

If there is domestic violence in your home, staying with the abuser is probably not an option. Suppose your spouse has committed family violence against you or your children. In that case, you should do whatever is necessary to ensure your safety and the safety of your children (and your pets too).  

You may need to seek a Protective Order, which can be filed separately as an independent suit or as part of an existing divorce proceeding. Among the relief sought in a Protective Order, you can ask the Judge to order your spouse to vacate the home and to stay away while the order is in place.  

Sometimes, there isn't time to secure a Protective Order. In that situation, leaving home temporarily as soon as possible is the safest option. If you leave your home to avoid an abuser, it does not mean you have abandoned your home or the right to seek possession or an award of the property. Protective Orders are complicated, and this article can't possibly address all the issues and procedures needed to secure the order. The bottom line is that if you're being abused, call the police immediately and take action to protect your safety and the safety of your children. As soon as you're safe, find a lawyer who has significant experience handling protective order applications. 

• Are There Children Involved? 

If you believe it's in the children's best interests to reside primarily with you, you will likely want to stay in the home and not have their lives disrupted unnecessarily. If you think the children should remain with your spouse and continue living in the house, then maybe you should move into a new residence. It would help if you tried to find a new home close by so you'll be able to see your children frequently and without needing to travel great distances over long periods to exercise visitation. 

• Can You Afford to Stay in the House? 

This is often the most determinative factor. Usually, two incomes are needed to pay the mortgage, taxes, insurance, utilities, repairs, and homeowner assessments. You have to be realistic about your ability to afford the home. Fighting for a home you're emotionally attached to will lose its appeal quickly when you struggle each month to pay your bills. 

• Will Moving Out Hurt You Financially? 

If your spouse takes over the mortgage, especially temporarily, getting your name off the debt may not be possible. If your spouse fails to pay the mortgage on time, or even at all, your credit will be impacted. Maybe it would be best for you to stay in the home to ensure the debt is serviced timely. Sometimes the reality is the home must be sold. If that involves a lot of repair and maintenance to get the home sale-ready, maybe you're the better owner to get the job done. If your spouse doesn't want to sell or move out, they may sabotage your efforts to market and sell the house.  

• Do You Want the Houses After the Divorce? 

Once you have moved out, it may be challenging to secure an order to force your spouse to move out so you can move in. Not to mention the hassle and costs of moving out temporarily and then moving back in after the divorce has been finalized. If you want the house to be awarded to you in the final division of marital assets, you may want to dig in now and fight for temporary use and possession of the house.  

Who Pays the Mortgage and Other Expenses?

This is a tricky question to answer. Usually, the party who gets temporary possession will have to pay the expenses. After all, if one spouse moves out, they will have to incur costs to secure a new residence to live in while the case is pending. Logic tells you that if you get the benefit of using the home during the pendency of the case, you should have to pay the freight. On the other hand, sometimes the economics require that the other spouse pay some, and even all, of the costs of the mortgage, taxes, insurance, and upkeep for the home. Who pays for what largely depends on the resources of the parties. If one spouse is a high-wage earner and the other is a stay-at-home parent, then the spouse who vacates the home may be on the hook for most and even all of the home's expenses, especially if the children will remain in the house.  

What if I Can't Afford to Pay for the House?

If you can't afford to pay for the house, you can ask the court to order your spouse to pay some or even all of the costs of maintaining the home. After all, the house is a marital asset of both parties, often the single most valuable asset owned by the community. The mortgage, taxes, and insurance must still be paid to preserve this valuable asset. Your lender doesn't care about your divorce. They just want to get paid. If the mortgage isn't being paid, both spouses are at risk of foreclosure and potentially losing everything. Additionally, the earnings of both parties, including a spouse who earns most or all of the family's total income, are "community property" belonging to both parties.  

Do I Have to Move Just Because My Spouse Says So?

If the house is community property, absolutely not. Neither spouse has a superior right to use and possess the house during the pendency of the divorce until a judge enters a temporary order. On the other hand, if the house is the separate property of only one spouse, then the answer may eventually be yes. Of course, when there are children involved, both parents have a duty to support the children, and on a temporary basis, the use of even a separate property asset can be temporarily awarded to the other spouse for the support of the children.  

If your name is on the lease or mortgage, your spouse doesn't have the legal authority to force you to move out just because they want you to. Only a judge can order a spouse to vacate a home that both own or have a right to lease. Generally speaking, you should not move out just because your spouse wants you to leave. Instead, you should consider and weigh all of the above factors in deciding your best course of action. 

If the parties own a home together or have a lease in both names, then they both have a legal right to stay in the house (at least until a judge says otherwise). No one, including the police, can force you out of a home you have a legal right to occupy without a court order. To get such an order in a divorce, a temporary orders hearing must be conducted. The Judge will determine which spouse will be awarded the "temporary exclusive use of the residence" during the temporary orders hearing. 

In some cases, where there is no violence and when the parties are otherwise getting along reasonably well, both parties can continue to occupy the home during the pendency of the divorce. Of course, this only works when the parties are divorcing amicably, share responsibility for the children, or cannot otherwise afford to pay for two separate residences.  

Final Thoughts.

Whether you should stay or leave your home during a divorce is a complicated question. Like most things in the law, there is no clear answer. Before making such an important decision, you should consult with an attorney. Because each case is unique and has many factors to consider, you should not rely on this blog post to make such an important decision. This article has been presented strictly to give you some factors you may want to consider when making this decision. Ultimately, you should consult with an experienced family law attorney so that all critical factors in your situation can be considered and discussed.  

Housing issues are among the most gut-wrenching and difficult to deal with in a divorce. Moreover, the issue of who gets to stay in the house requires immediate action, typically the filing of a hearing for temporary orders. This is where mediation can really help. Before going to Court and rolling the dice with a judge who may or may not have time to consider all aspects of your case, it is highly advisable to schedule a mediation session to see if difficult issues like who gets to stay in the house, who pays for it, etc., can be worked out by agreement. With a skilled and knowledgeable mediator to help, the parties may be able to avoid headaches and problems down the road. 

Don't Forget to Mediate!

Most family law cases must be mediated at least once before proceeding to a final trial. In fact, most courts will also require mediation in cases involving disputes over custody, visitation, or child support hearing temporary orders. Armatys Millard can help with both! We understand the issues for temporary orders and for a final trial, and we will give you the benefit of our years of judicial experience and knowledge. 

Armatys Millard Is Here to Help!

Walter Armatys and John Millard have significant family law experience, both as trial lawyers and as Family Court Judges. This judicial experience gave Walter and John a keen insight into how Judges think, what persuades them, what annoys them, and, importantly, what information Judges need to make an appropriate ruling. Armatys Millard provides mediation and arbitration services for family law disputes pending in Fort Bend, Harris, and surrounding counties. You can count on our extensive family law experience and judicial wisdom to help successfully resolve your case.

CONTACT US NOW

If you need to mediate or arbitrate a divorce, custody dispute, or other family law issue, Armatys Millard, PLLC can help. Check availability and book your session online or call our office at 281-313-6800. We're here to help!