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The House in a Divorce: Who Should Leave?

Updated on September 3, 2012

That is one of the usual questions asked. Does it matter? Maybe, maybe not. In California, a community property state, usually both spouses names are on the deed, both legally own it and have a right to it. When things go bad, the first debate is who is leaving the home both love and have a right to? Is there an advantage in leaving or staying? Neither? The initial gut reaction is that there is an advantage to staying, but it depends on who is paying the mortgage.If there is bad blood, the spouse leaving may find the locks have been changed. If they do not stay away, then, they could get served a useless restraining order.

One could say that is one advantage to the spouse that stays. Since both spouses are legal owners, the one who leaves does not suffer. They are still owners. If the spouse occupying the house is not also paying the mortgage, and the moved out spouse is, then, according to Epstein ruling, they are entitled to be reimbursed the amount paid of the mortgage amount in the divorce, unless waived or is deemed support. If the mortgage remains split, each spouse paying their share, then only half of that can be reimbursed.

Under the Watt ruling, the spouse out of the house can be entitled to a fair rental rate. The fair rental rate for the home must be greater than the mortgage monthly paid. So, if a home could rent for $2500\mo. and the mortgage is $2000\mo. The moved away spouse could get $500 more in settlement calculated on a per month basis until court.

So, in some ways, staying in the home is good and bad. Having possession of the home does not make it more yours, legally, because at the end of the road, it most likely will be sold and after the mortgage is paid, the balance split. It is easier to stay and let things remain the same than it is to move belongings. The spouse in the home cannot sell without your signature. The Court is not going to award them the house simply because they live in it until the divorce is final. The spouse in the house has a duty to maintain it inside and out and not trash it. If they do, it will hurt the resale value. But face it, many things will remain belonging to the leaving spouse and they still have a legal right to the home. Of course, for the spouse leaving, letting go after so many years and memories remains a most difficult thing to do.


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    • His princesz profile image

      His princesz 5 years ago

      Hello perrya, seeing a home fall down breaks my heart. With all the wedding vows divorce should not happen. And the kids too. It's just so sad that divorce is happening everyday all over the world.

    • perrya profile image

      perrya 5 years ago

      The age of the kids is always paramount. Besides the house, if there is only one car, that is another necessity to both.

    • carol7777 profile image

      carol stanley 5 years ago from Arizona

      I guess that is a real problem in divorce. I think when there are kids in school the mom should stay until they finish school. Divorce is tough at its best.