Who Gets to Stay in the House During a Divorce?

You will likely have a lot of questions while navigating your divorce. In addition to who gets child custody or how assets are divided, many couples also wonder who gets to stay in the house during the divorce. The answer is: it depends.

Who Gets the House In a Divorce?

Whether or not the house is considered joint property determines who keeps it following the divorce. Additionally, state laws can determine whether a spouse has a legal right to a home, even if they are not on the title. The two laws include:

• Community property laws: In a community property law state, spouses will be required to split assets evenly.
• Equitable property laws: In an equitable property law state, spouses will be required to divide assets as decided by the judge.

New Jersey follows equitable property laws. This means that it is up to the judge who gets what in a divorce.

Ownership of the property also matters. If the home was not acquired together, such as if it was part of an inheritance or gifted before the marriage, then it will go back to the original owner. If both spouses are on the title and have ownership, then both are legally eligible to stay in the property during the divorce proceedings. It may be up to the married couple to determine their living arrangements.

What Happens to the House Following the Divorce?

What happens to the house following the divorce will depend on what the judge orders. If the judge assigns the house to one spouse, then that person can live in it. But, in most cases, the judge may require that the couple split the house, even if the split is not equal. In this case, you may have to sell the house in order to divide the assets.

You may also be able to arrange a living agreement. If one spouse wants to stay in the house, despite not being the primary owner or having 100 percent ownership in it, then they may be able to arrange a rental agreement. One spouse may also be required to buy the other spouse out of their equity if you don’t plan on selling yet.

How to Negotiate a Fair Living Agreement

Sometimes coming to an agreement on who should live in the house is easy. In many cases, the parent who takes primary care of the children may be the one to keep the home. It is usually best if the couple can come to an agreement before going to court. This usually works in the best favor of everyone involved. It can also be helpful to work with a divorce lawyer or mediator who can negotiate on your behalf.

A negotiator may be able to come up with solutions that you and your spouse have not considered. Otherwise, it may still be beneficial to work with a lawyer to ensure your legal rights are protected and that you have equal access to all assets. Divorces can be confusing and it is normal to have a lot of questions. Having a family lawyer on your side can help you determine the best course of action and help you get through it. 

Contact our Mercer, Middlesex or Monmouth County Family Law Attorneys for a Consultation About Divorce in New Jersey Today

If you are thinking about filing for divorce, or if you have already started the divorce process and are dealing with another matter such as child custody, child support, or division of assets, you need to speak with a qualified attorney. The New Jersey family law attorneys at Hartman Duff, LLC represent clients throughout the state, including Hamilton Township, Ewing Township, Trenton, and Allentown. We understand how challenging this time can be for you, which is why we will fight hard to protect your interests, and the interests of your loved ones, throughout the legal process. Call us at 609-853-5579 or fill out our confidential contact form to schedule a consultation. We have an office conveniently located at 2681 Quakerbridge, Hamilton Township, NJ 08619.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.