Keeping the marital home isn’t just an economic issue in divorce. It can be a highly charged emotional issue as well. If you and your spouse can’t agree on who will get it, take a hard look at your anticipated post-divorce finances before you get caught up in a fight. If you win, are you sure you’ll be able to afford the house on your own? If your answer is yes, there are a few ways you might be able to get possession, either during your divorce, when it’s over or both, depending on your circumstances.
Exclusive Use and Possession
You can ask the court for exclusive use and possession of your family home during the divorce proceedings under certain narrow circumstances. You have to file a motion with the court and prove to the judge that living there with your soon-to-be ex is creating an intolerable situation. You must prove that if the court requires you to continue living together as a family, you and your children would be subjected to a hostile and unhealthy environment. Intolerable doesn’t mean that you’re vexed out of your mind. It may simply mean that your spouse is already staying somewhere else but if he’s permitted to move in and out at will, it will create a stressful situation for you and your children. You might also be awarded exclusive possession if your spouse drove you and your children out, but it’s in the children's best interests to remain in their home.
If Domestic Violence Is an Issue
If your spouse has threatened you with physical harm, or if he has actually hurt you, you can ask the judge for an immediate restraining order, which can force him to leave your home, but “temporary” is the key word. This can be a dicey process, so you might want to consult with an attorney or legal aid first. Normally, the court will grant you a temporary order if the judge feels that your reasons and evidence are compelling. A hearing is usually scheduled within one to two weeks when your spouse will have the opportunity to argue his case and try to convince the judge that any threat you perceived was all in your imagination. If you’re successful and get a permanent restraining order, you can live in the home in peace until your divorce is finalized and the court decides who gets the property. If the judge denies you a permanent order, your spouse can return home -- possibly angrier at you than he was before.
Getting the House in the Divorce
Neither exclusive use and possession nor a permanent restraining order automatically translate to getting ultimate ownership of the home in the divorce. This is a separate decision by the judge. Both you and your spouse are entitled to a share of the property’s equity, so if it’s awarded to you, you’d have to buy out your spouse’s interest. This typically involves refinancing the existing mortgage to take out extra cash. If you have sufficient other marital assets to offset your spouse’s equity interest in the house -- such as because you can waive your interest in his retirement plan in exchange for him waiving his interest in the house -- you can also achieve a buyout this way. If neither of these options are possible, the judge can order that the property be put up for sale with the proceeds divided.
Many state courts take custody into consideration when deciding which spouse gets the home. Some states reserve the right to award the home to the parent who gets custody temporarily, for a period of years after the divorce is over so as not to force the children to relocate. This is a “deferred” sale. A lot of factors go into the decision of who gets the house and for how long, so talk with a local lawyer who is familiar with how things work in your state.