If a Husband Leaves the Home, Will He Lose Legal Rights to That House?

By Patrick Gleeson, Ph. D., Registered Investment Adv

Under normal circumstances, moving out of the house you've lived in with a spouse you're divorcing or planning to divorce does not affect your ownership claim.

Couples planning to divorce sometimes fear that if either one of them leaves the marital home it may reduce a claim to a share of the residence. In most instances, this fear is a hangover from earlier divorce statutes that no longer apply. In other instances, it may simply be misinformation gleaned from entertainment news about celebrity divorces. In normal circumstances, where you reside does not affect your ownership rights.

Some Sources of Confusion

At one time, the terms of a contested divorce depended upon the judge's decision about which of the two parties was primarily at fault. The custody, visitation and even property rights of the party at fault were abridged, sometimes severely. In that historical environment, moving out of the home could carry an implication of abandonment and could actually weaken the leaving party's ownership rights. But that day has passed. Every state has some form of no-fault divorce, and many states don't recognize "fault" as a concept related to divorce under any circumstance. Understandably, someone who is not a lawyer may not be aware of these changes and may fear the charge of abandonment if they leave the home, but in normal circumstances this is no longer a consideration.

Divorce Law Regarding Property Distributions

Most states are common law states. In those states, who owns the marital residence depends entirely on whose name is on the deed. If both names are on the deed, both partners own it equally. The only exception would be a premarital or other legal agreement binding the parties to another ownership distribution.

Nine states are community property states, where the assets purchased or obtained during the marriage -- and in some instances, even assets owned by one of the two parties before the marriage -- are community property. They are owned equally and jointly by the two parties, regardless of the name or names on the property deed.

In neither case, however, is residence a deciding factor. You can safely move out of the house you've lived in without its having an effect on ownership rights.

Since individual circumstances can affect your rights to joint property, which may differ from state to state, it is always a good idea to consult a divorce attorney regarding appropriate steps to make clear your ownership rights.

About the Author

Patrick Gleeson received a doctorate in 18th century English literature at the University of Washington. He served as a professor of English at the University of Victoria and was head of freshman English at San Francisco State University. Gleeson is the director of technical publications for McClarie Group and manages an investment fund. He is a Registered Investment Advisor.