Who Gets to Stay in the Marital Home / by Cassandra Hearn

Real estate, and more specifically, the marital residence is often one of the biggest assets to divide in a divorce. Most couples are interested in moving their divorce and separation along quickly, once divorce becomes inevitable, but the division of property is an issue reserved for trial in California cases. Nevertheless, the question often becomes: which spouse can and should stay in the marital residence, or should residence should simply be sold and divided?

An important initial inquiry is whether the house is marital or separate property. In the majority of cases, the house is marital property that will have to be divided in the divorce. However, in some cases, this may not be true. If, for example, one spouse owned the house before marriage and the parties have been married only a very short time, it's possible the house is not marital property at all, or if it has appreciated, it could be subject to a Moore-Marsden interest calculation.

If the divorcing couple has children, temporary use of the marital home can be an important consideration. The court's aim is always to maintain as much stability and continuity as possible for the children during the turbulent time of divorce. Allowing the primary parent to remain in the house, even temporarily, can help the children transition in the divorce. Letting them remain in the house would mean they would continue in the same school and be close to their friends. If it is possible for the primary parent to remain in the home, that may be preferable for the sake of the children. In some circumstances where both parents share substantial parenting time together, the court can even order a “nesting” arrangement where the children stay in the home, but the parents rotate in during their parenting time.

 Another vital inquiry is who can afford to stay in the house? If one spouse is much better financially positioned to take over the mortgage payments, it may be best to have that party stay in the house. In some situations, it may be possible to ask the court to order one party to continue to be responsible for the mortgage payment while the divorce is pending. However tempting this may seem, it is not always the best outcome at the end of the case as division of the home could result in credits, offsets, and recalculations of the division of the equity left in the marital home.  Although making the transition to a different and sometimes smaller home can be difficult at the outset, it is important to get great legal advice tailored to your situation, and to face the issue head on. 

ltimately, the house is subject to division in the divorce.  If neither party can afford the house alone, the house will need to be sold and the equity split between the parties.

  We have experience in dealing with the marital residence and helping our clients navigate the issues associated with who should remain in the house. Contact us today at 619-800-0384 to discuss your interest and your property.