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Who Should Stay In The House During The Divorce Process?

When your divorce starts, this might be one of the most confusing things that you and your spouse will have to deal with: who will stay at the family home? Is this even possible? Whenever you want to determine if you want to stay in the marital home, there are important factors to take into […]

When your divorce starts, this might be one of the most confusing things that you and your spouse will have to deal with: who will stay at the family home? Is this even possible?

Whenever you want to determine if you want to stay in the marital home, there are important factors to take into account. As many answers that any lawyer might give you, it all depends on how the process might go.

Should You Stay In The House During The Divorce Process?

If acquired during the marriage, both have equal rights to it.

Both you and your spouse have technically the same rights to stay at the house if this is your case. If you wish to stay in the house, it is your right and it can be done, but you’ll have to reach an agreement with your spouse about it.

As New York Times points out:

Neither of you can sell the house without the other’s consent, nor can you limit each other’s access to it. It’s as much his house as it is yours.

When it comes to marital property, it’s a standard that both parties will get 50-50. So, if you decide you want to keep the house after the divorce, you’ll need to buy your spouse’s share of the house.  If you and your spouse decide to sell the house, you can both agree on one of you living in the house until it gets sold.

Determine Your Long Term Goals

Maybe you want to move to another city, maybe you’d like to try a new career path. Also, staying at the place you shared so many memories, might be too hard to endure. So a recommendation is to first determine your long-term goals before getting into the conflict of who will keep the house.

If you both determine that selling is the best option, you can both reach a temporary agreement until the house is sold. And, if you are on good terms, you could even share the house in the meantime. This might be a good financial option for both parties, but not all of the soon-to-be ex-couples will be able to handle that.

If you cannot reach an agreement, you can get a mediator

Oftentimes, compromising might be very difficult during the divorce process. So, if you both want to keep the house, it is possible to get a mediator to help you reach an arrangement, you can always get a mediator to help you establish how the housing situation will work during the divorce. Of course, this will be adding up to the divorce tab, so do your best to reach an agreement.

Is It Better To Stay Or Leave?

Most couples overlook the fact that it may be better to leave than stay. While staying is a default option, it may be more costly. For instance, you may need maintenance and upkeep money to run a home.

The home may also be partially paid for. While a higher-earning spouse may be tasked with continued payment, this may not always be the case.

In a nutshell, staying may not always be the cheaper option. Let’s not forget emotional effects. It may be hard living in a home you shared many memories in.

What Are Your Options?

In many states in the US, including Alabama, there are three main options for spouses who choose to end their marriage. These options include;

One Spouse Stays

In the midst of a divorce, most spouses choose this option. One will stay, and the other one leaves. However, the one staying may be required to buy out the other one, given the 50/50 marital property rule applicable in most cases. As a result, the one staying should be able to buy out and run the home.


Co-living is also an option. Both spouses may decide to remain but establish clear boundaries in the home. This option may be applicable if the home in question makes it practical to divide communal spaces.

The bills and chores also need to be shared. Co-living eliminates the stress of selling things, buying out the other spouse, and engaging in other stressful things. However, some jurisdictions may not allow this option.

Consult a seasoned divorce attorney in Alabama to understand if co-living is a legally accepted option in your situation.

Everyone Leaving

Sometimes it’s advisable to get rid of everything you share, including your home. In this case, the home is sold, and the proceeds are divided. The process has its own challenges. For instance, you may need to hire a realtor, spend money on home improvement, staging, showings, and other tasks you may not necessarily want to do in the middle of a divorce.

Deciding to Stay or Leave Your Marital Home: Important Factors

What Does the Law Say?

Many states have equitable distribution rules. However, others have community property rules. The difference lies in the definition of separate and marital property.

Generally, marital property is property bought during a marriage. Such property is treated as marital property in community property states and divided equally regardless of the name on the title deed. Inequitable distribution states, property division is complicated. Alabama isn’t a community property state, so legal processes decide what is and isn’t individual property. Spouses don’t always get equal shares. However, the process is intended to be fair.

In most cases, if one spouse buys a house prior to marriage, that is considered separate property. However, there are exceptions depending on unique scenarios. Non-owners who contribute to buying property, maintaining a home, and other ways can claim a stake in the property.

To do this successfully and fairly, the importance of legal help from an experienced Alabama divorce attorney can’t be overemphasized. You need a lawyer to determine if the law favors you to stay or leave.

Financial Dependence On A Spouse

Do you depend on your spouse financially? If yes, you may be the one required to leave.

If you don’t have money, anywhere else to stay, and means to support your children and yourself, you should rethink leaving.

The legal process accommodates spouses who need help. You can get time to search for a job. In most cases, you may also be given precedence to stay. If not, a spouse can file a petition aimed at securing temporary possession of a marital home.

Domestic Violence

If domestic violence is the reason behind the separation, the unique circumstances of a case will dictate who will stay. Generally, victims of domestic violence get first priority to stay whether they contributed to buying a home or not.

They may also get special protection through a restraining order or order of protection against the violent spouse. However, domestic violence may be defined differently based on jurisdiction. Your spouse doesn’t need to be physically abusive. Threats of violence may qualify as domestic violence.

Consult a divorce attorney in Alabama to ascertain if your case qualifies as domestic violence and if you can gain the necessary orders to allow you to stay in your home.


The presence/absence of children in a marriage can also dictate if you get to stay or leave. Spouses who are primary caregivers usually get priority. In divorce proceedings, courts focus on the children’s stability first.

If it’s in your children’s interests to stay while you care for them, the court is likely to allow that. However, you can also choose to leave and stay elsewhere with your kids.

Couples are encouraged to decide what’s best for their children. However, the court can step in to settle disagreements. If you can’t agree on what is best for you (as a primary caregiver) and your children, talk to a divorce attorney.

Whose Name Is On The Title?

When both names are on the property title, you share equal rights to your marital home. However, factors like domestic violence will be in favor of the victim. If one spouse is listed, he may have an advantage. However, there’s no automatic authorization to stay simply because your name is on a title.

Instances like domestic violence can work against you if you are the abuser. Other contributions to a marriage may be considered. If you bought your home before marrying your spouse and didn’t add him/her to the title after marriage, you stand to have a stronger case to stay. However, if you aren’t the primary caregiver, you may be forced to move temporarily or find a place for your spouse and children.

The disadvantaged spouse can get spousal support, or explore other options depending on their own rights to the marital property. For instance, spouses who have a partial ownership interest in the marital home can buy each other out. If a dependent spouse stays, they can refinance the home to afford living expenses.

Pros & Cons Of Staying In Your Marital Home During A Divorce Process

There are several benefits and disadvantages of remaining in your home during a divorce process. The main ones include;

Benefits Of Staying

As mentioned above, staying can be a good thing for your children, offering them some much-needed stability during difficult moments. Staying also gives a spouse fewer things to deal with during divorce proceedings. In case a spouse is living with other family members such as grandparents, they can also continue living uninterrupted. What’s more, staying until you have to leave offers more bargaining power.

Disadvantage Of Staying

If you depend on your spouse, you could plunge yourself into financial problems, given home has its own expenses that you will be forced to pay alone. Living in the same home that you spent time in with an abusive spouse may result in psychological trauma

FAQs About Staying In A Marital Home During Divorce

I Moved Out Hastily. Can I Go Back?

Separation can result in decisions that aren’t well thought off. If you move out hastily after an argument, you may disadvantage yourself. This applies mostly to men who aren’t primary caregivers. You can be “locked out” from your home on grounds of abandonment. Generally, it may be better to seek legal advice before moving.

Generally, the question of staying or leaving is solely voluntary. Unless a court makes you leave, it is not advisable to do so in your own volition. What’s more, you can fight an order to remove yourself from your home.

Who Makes The Final Decision On Who Stays Or Leaves A Marital Home During A Divorce?

In ideal cases, spouses should decide their living arrangements with strict consideration of their children’s best interests. However, given the nature of divorce processes, disagreements are common. In that case, the court has the ultimate stay. The focus should therefore be on making a strong case. As discussed above, courts consider many things, from the circumstances of a divorce to the ownership of the home and the best interests of the children involved, if any.

Can I Move Before Divorce?

Yes! The law doesn’t say when a person should move. The circumstances of the divorce process should dictate the living arrangements. If you are a victim of domestic abuse, you can move immediately.

If the divorce doesn’t involve any form of abuse, you can wait for the process to be complete. As mentioned earlier, there are benefits and cons of moving before a divorce process is finalized. For instance, moving can reduce your bargaining power. Consult a divorce attorney to know if it is wise to stay or move.

Who Stays In The Marital Home If There Are Children In The Picture?

It depends. The wife or the husband can stay depending mainly on who is the primary caregiver and the children’s best interests.

Ultimately, you should be guided by a divorce attorney before you decide whether to stay or leave.

If you are looking into getting a divorce, you want someone who is going to be on your side. Connect with us at Charlotte Christian Law Firm to find an attorney that will go to bat for you both in and out of court. We will fight for you. Experience the Charlotte Christian difference. Connect with us by phone at (256) 769-0508, or online at charlottechristianlaw.com. As we’d love to advocate for you, throughout your divorce journey and help you keep the house or child custody.

Call or text (256) 859-7277 or complete a Free Case Evaluation form

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