When married couples separate, one of the most immediate and emotionally charged issues is who gets to remain in the marital home. The answer isn’t always a simple one. Depending on the couple’s circumstances and the reason for the separation, it can depend on a variety of legal and practical factors.
Whether you’re currently navigating a separation or preparing for one, understanding your rights and how the courts typically approach this issue can provide a lot of clarity during a very chaotic time. Let’s take a closer look at what issues factor into these decisions.
First of All, What is Considered the “Marital Home?”
The marital home doesn’t necessarily refer to a “house” but the primary residence where you and your spouse lived during your marriage.
The marital home doesn’t have to be property owned by you and your spouse. An apartment or house rental that served as your primary residence is still generally considered the marital home for separation purposes. It doesn’t matter who is on the deed or lease, or who pays the mortgage or rent – if the home was acquired or used by both of you during your marriage, it is generally considered your marital home under the law.
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Getting Clarification Through Temporary Orders
In most separation cases, both spouses have equal legal rights to the marital home. However, it’s not usually practical — or even safe, in some circumstances — for both spouses to remain in the home during a separation. To address this, separating spouses often seek temporary orders from the court early in the process to legally clarify and provide legal enforcement for many different matters, including who will remain in the marital home.
What Are Temporary Orders?
Temporary orders are short-term, legally binding decisions made by the court to manage immediate issues and stabilize a family’s situation while a separation or divorce is pending. Temporary orders can address a wide range of issues, such as:
- Who can remain in the marital home
- Temporary child custody and visitation
- Child and spousal support
- Who will be responsible for the payment of bills and mortgage or rent payments
- The use of vehicles and other marital property
- Who can have access to joint bank accounts, or what accounts should be frozen to preserve marital assets
- Restraining or protective orders if there is a history of domestic violence, threats, or harassment
Why Temporary Orders Matter in a Separation
When spouses separate and don’t agree on all key issues, temporary orders offer structure and stability during an uncertain and chaotic time. When it comes to the marital home, temporary orders can:
- Prevent further conflict between you and your spouse
Temporary orders help reduce friction by clearly outlining who has the right to remain in the home and under what conditions. - Ensure a stable environment for your children
Courts prioritize the children’s well-being during any family law matters. Temporary orders can ensure your children stay in a consistent living situation with minimal disruption to their schooling and routines. - Maintain stability and continuity of your daily life
Temporary orders provide guidance on who pays the bills, handles parenting duties, and how marital property is used during the separation. - Protects your family’s safety
If there is a history or allegations of abuse or unsafe behavior, temporary and protective orders can remove one spouse from the home to protect others in the household.
By formalizing arrangements through the court, temporary orders ensure both spouses are held accountable and that critical issues are managed fairly and legally until a final divorce agreement is reached.
What Factors Does the Court Consider When Deciding Who Will Remain in the Marital Home?
When deciding who should stay in the marital home during a separation, courts will consider many factors that can affect the family’s well-being, safety, and financial security, including the following.
The Custodial Parent and Best Interests of the Child
When minor children are involved, the court’s goal is to reduce as much disruption as possible in their lives by maintaining consistency and stability. This usually includes keeping them in a familiar environment, within the same school district and community. Because of this, courts often favor the custodial parent to remain in the marital home to ensure continuity and stability for the children. Even when both parents share custody, the court will often determine that the primary custodial parent staying in the home better serves their children’s best interests.
Financial Considerations
Financial practicality can play a major role in who stays in the marital home during a separation. The court will evaluate whether either spouse can reasonably cover the cost of the mortgage or rent without the financial support of the other. If only one spouse has the income to sustain the household, that spouse may be more likely to remain in the marital home.
However, that is not always a given. The court may award temporary spousal or child support, allowing the lower-earning spouse to remain in the home if that support enables them to cover the home’s expenses.
An Existing Prenuptial or Postnuptial Agreement
If a pre- or postnuptial agreement is in place, the court will usually honor its terms, especially if it clearly states what should happen to the home in the event of a divorce. These agreements often clarify:
- Who will retain the marital home in the event of a divorce
- Whether one spouse has the right to remain in the home temporarily or permanently
- Whether the home is considered separate or marital property
- How any equity in the home will be divided in the event of a divorce
While these agreements outline property ownership, it doesn’t always mean the named owner will get to stay in the home during a separation. The court may still base temporary occupancy on the children’s needs and best interests, a spouse’s financial needs, and possible safety concerns.
Separate Property vs. Marital Property
If one spouse owned the home prior to the marriage, it may be considered separate property, and that spouse would usually be entitled to stay in the home. However, if both spouses have contributed to mortgage payments, household expenses, renovations, or the other spouse was added to the deed, the property may then be partially or fully marital property. This will also affect property division during the divorce.
Mediation or Negotiation
Couples are always encouraged to try resolving disputes before heading to court. Reaching a mutually agreed upon separation agreement offers a faster, less expensive, and less emotionally draining experience.
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Common Outcomes in Court Decisions
Every separation is unique, and courts address temporary living arrangements based on a couple’s specific circumstances. Common outcomes in court decisions include the following.
Exclusive Temporary Occupancy
In many cases, the court grants one spouse the exclusive possession of the marital home during separation. This decision is usually based on factors such as the presence of minor children, financial capability, or safety concerns.
- If minor children are involved, the primary custodial parent often receives exclusive occupancy to provide stability and reduce disruption to the child’s routine.
- If there is a history of domestic violence, the court may issue protective orders and award exclusive use of the home to the victimized spouse for their safety.
- If one spouse cannot afford to live elsewhere or has strong ties to the home, such as medical needs or caregiving responsibilities, the court may favor their continued residence.
Voluntary or Court-Ordered Relocation
In many cases, one spouse voluntarily moves out of the home to reduce conflict or because they have access to alternative housing. Voluntary relocation does not mean giving up property rights. The spouse who moves out may still have a legal and financial interest in the home.
However, in states such as Virginia, where abandonment is considered grounds for divorce and can affect divorce outcomes, the remaining spouse could claim the relocating spouse deserted the marriage. Furthermore, one spouse moving out without an agreement in writing could potentially affect that spouse’s custody determinations during the divorce proceedings.
Shared Occupancy
In some situations, both spouses may continue living in the marital home during separation. This usually happens when:
- Spouses can’t yet afford to support two separate households
- There are no safety concerns
- The separation is relatively amicable
Courts rarely force two separating spouses to live together except when there is a mutual agreement, both parties have demonstrated they can remain respectful, and there’s a strong financial need or they are waiting for final property arrangements to be made.
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What Can You Do Now to Protect Your Rights During a Separation?
If you’re currently going through or considering separation and are concerned about your ability to stay in the marital home – or other issues, such as finances and parenting – you will want to take proactive steps to protect your rights and get legal clarity on your situation.
Consult a Family Law Attorney
Before making any decisions, speak with a family law attorney who can give you insight on your rights and obligations during a separation, who may be more likely to remain in the family home given your circumstances, and guidance on seeking temporary orders or creating a legally enforceable separation agreement.
Track Current Financial Contributions and Parenting Roles
If you want to remain in the marital home, having clear and factual documentation will be essential to support your wishes. Document who is currently paying household expenses, your involvement in your children’s care, school routines, and household management. Keep copies of bank statements, emails, texts, and receipts that can be critical when seeking temporary court orders.
Preserve Financial Records and Legal Documents
Gather and organize your important financial and legal paperwork to support any of your requests during the separation process. These should include mortgage or lease documents, pre- or postnuptial agreements, bank accounts and credit card statements, and tax returns and pay stubs. Having this information on hand will help your attorney and the court assess your financial picture.
Address and Document any Safety Concerns Immediately
If you feel unsafe in your home due to your spouse’s behavior, you should act immediately. Safety concerns are a top priority for the court and play a powerful role in who should remain in the marital home, whether the other spouse should be legally ordered to leave, and if protective orders are necessary to prevent contact. Document any incidents in writing, take photos of injuries or damage, save threatening messages or voicemails, and report dangerous behavior to law enforcement if you are in immediate danger.
Consider a Separation Agreement
A separation agreement provides a clear and legally binding roadmap outlining how key issues will be handled during your separation, including who will live in the marital home. Courts tend to view separation agreements favorably when they are fair and mutually negotiated. In many cases, the terms of your separation agreement can even be incorporated into your final divorce decree, streamlining the process.
If you are currently navigating or considering a separation, it’s important to speak with an experienced family law attorney who can provide knowledgeable advice and guidance to protect your interests. The award-winning family law attorneys at Melone Hatley, P.C. are here to develop a legal strategy tailored to your unique situation. Contact us today through our website contact form or call us at (800) 479 – 8124 to schedule a free consultation with one of our Client Services Coordinators.
Schedule a call with one of our client services coordinators today.
