Who Has to Leave the House In a Divorce?

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A young homeowner fills up petition for divorce

Your home is the most significant financial asset for you and your spouse. You’ll both have an emotional attachment too. The problem is that emotions make it hard to decide who leaves the house in a divorce. The answer relies solely on your circumstances.

Divorcing couples willing to compromise can amicably agree on who leaves the house. An amicable agreement is more straightforward than dealing with couples who will not compromise.

If there is conflict about who goes, the process becomes more complicated and requires legal proceedings. Ultimately the court will decide who continues living in the home during a divorce dispute.

Considering all potential impacts, such as financial and emotional ties, is essential as you divorce your spouse. This article highlights things to consider before moving out of the family home to help guide this critical step in your journey.

You should consult a divorce lawyer to help you with legal questions. That kind of attorney-client relationship is always the best way for you to navigate a divorce case. Your law firm will have professionals specializing in legal advice during a divorce. They’ll also explain your legal rights, help file divorce papers, and navigate your state’s laws.

Two young homeowners facing each other during arbirtration to decide who has to leave the house during a divorce

Here’s Who Leaves the House in a Divorce

A divorce attorney can help you with the laws governing who leaves the house in a divorce. For those filing for divorce in certain states, the law requires you to live separately and independently from your spouse before initiating the divorce proceedings.

In most cases, this involves living apart, and one of you has to move until the court finalizes the divorce. If you reside in a state with a separate-and-apart law, you must decide which will move out and who should remain in the family home.

If you and your former spouse disagree on who leaves, a judge decides for you.

Domestic violence often gives victims the house. Abusers may face a court-issued “order of protection” or restraining order, and any violation could result in an arrest.

Your state may not have the separate-and-apart rule. In that case, it’s essential to understand that both spouses have the right to stay in the house during a divorce unless the court orders otherwise. Sometimes, a jointly held mortgage must be refinanced by the one remaining.

What About the Mortgage?

You’ll need to consider the divorce and its effect on the mortgage. The only way to get a spouse off a mortgage is to refinance the mortgage. This can be done through the following:

  • a cash-out refinance allows you to buy out your spouse’s interest in the house
  • you agree to give your spouse the home in a divorce settlement; they’ll need to refinance the home mortgage in their name only

Even if one spouse is removed from the mortgage loan, both parties remain responsible for paying it off until it is paid in full. If one spouse fails to pay the mortgage after being awarded ownership of the marital home or property, both parties are still liable for unpaid debt.

A beautiful house with clear sky in the background

State Rules for Leaving a House During a Divorce

With some negotiation and agreement, you can divide your household assets and debts during divorce in any way that suits both parties. The judge will sign off on the settlement when it is reached. In disagreement, the court may order each spouse to split assets and debts according to one of two legal frameworks: common law or community property laws.

These 41 states adopt “common law,” which perceives every partner as a distinct entity with personal resources or liabilities under their name, respectively. In common law states, the owner’s name is on the deed. You are only responsible for the mortgage if you are also the borrower.  

In these states, a judge must apply equitable distribution when dividing assets and debts among spouses. In states that use equitable distribution, the court will consider each spouse’s contributions to the marriage, their economic circumstances, and other factors when determining how to divide the marital property. This approach differs from community property states, which divide all marital property equally between spouses.

It is important to note that equitable distribution does not necessarily mean an equal division of assets. Instead, it means that the court will consider all relevant factors when deciding how to divide the marital property.

These nine states are community property states. Community Property is any debt or asset gained while you were married. If you bought a home during the marriage, it’s community property with very few exceptions:

  • property that one person brings into the marriage
  • inherited property.
  • gifts

In these states, both community debt and property are usually split equally. Assets such as retirement accounts and stock portfolios can also be classified as community property.

Is A Partner Relying On The Other for Financial Support

When your marriage ends, it can be emotionally and financially devastating. One partner may rely on the other for financial support. Maybe they don’t have a job or make much less money. Either way, they rely on the other partner for spousal support, which could inlclude alimony.

When one partner relies on the other for financial support during a divorce, the house is typically divided according to the court’s order or the parties’ agreement.

In some cases, one spouse may be awarded ownership of the house while the other is given half its equity. Both spouses may agree that one spouse will remain in the home on condition that they buy out the other spouse’s share of its value or equity. The money from selling the home can also be split between parties according to their agreement or court order.

No matter what happens about who gets ownership of a home during a divorce, both parties need to understand their rights and obligations when it comes to real estate and other assets. Consulting with an experienced family law attorney can help ensure all parties know their options and decide how best to proceed.

Are Children Involved?

Divorcing with children can be a complex process, involving making decisions about child custody, dividing assets, and child support. One of the most important assets to consider is the family home. When deciding how to divide a house in a divorce with children, there are several options for property division.

One option is for one parent to keep the house and buy out the other parent’s share. This allows one parent to remain in the home while still providing financial compensation to the other parent.

Another option is for both parents to sell the house and split the proceeds equally. This ensures that both parents receive an equal share of the marital assets but may require finding a new home for both parties.

A third option is for one parent to keep living in the house until certain conditions are met, such as when all children reach adulthood or finish school. This allows children to remain in their familiar environment. Once the condition is met, they can agree to put it on the market and split profits evenly between them.

A beautiful house with green grass and blue sky in the background

Selling a House During a Divorce

Divorce can be a complex process, and selling a house during a divorce can add a layer of complexity. Understanding the legal and financial implications of selling your home during a divorce is essential.

Selling with a real estate agent: Real estate agents typically charge a commission fee of 6-7% of the total sale price, which can add up to thousands of dollars. Also, you may be responsible for closing costs and other fees associated with selling your home.

Selling your house without a realtor: For Sale by Owner (FSBO) selling is another option. It can be challenging to market your home and find qualified buyers. Sometimes, you may profit less due to pricing errors or a lack of local real estate market knowledge. Also, FSBO selling can take a while since you are responsible for all aspects of the sale process.

Selling to a cash buyer: Selling your home to a cash buyer can be an attractive option for many homeowners. Cash buyers offer a fair price for your home. Since they don’t need lenders, you can immediately close. You won’t have to pay real estate agents’ fees, making selling your home more cost-effective.

No matter which option you choose, it’s essential that you talk with your lawyer before making any final decisions about how to divide your house in a divorce with children.

Whose Name is on the Title Deed

A title deed is a legal document that shows ownership of a property. Title deeds transfer real estate ownership from one party to another, providing evidence of ownership for taxation and other purposes.

In community property and equitable distribution states, any assets acquired during the marriage are regarded as jointly owned, no matter what name is on the title. A spouse’s contribution to their home’s mortgage payments or renovations could give them a larger share.

You likely have a stronger legal claim for staying if you bought your home before marriage and did not add your partner to its title deeds.

If you have purchased a home together or added another person to the title at a later date, both parties are entitled to equal rights.


Divorce is a complex process for all involved, and it can be tough to leave the home you once shared with your partner. Many factors can lead to someone leaving the house during a divorce.

It is essential to understand these factors to make informed decisions about your divorce process.

Divorce can be difficult and stressful, especially when dividing up assets. A cash buyer may be the best option if you want to sell your home quickly and easily.

Cash buyer uses their funds to cover the home’s total purchase price, meaning they don’t need to take out a loan or wait for approval from a bank. This makes the real estate closing process fast and efficient, allowing you to move on without worrying about lengthy paperwork or waiting for approval.

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