When talking about residences during the divorce process, many people face the question of whether to stay or go. This can include whether they or their soon-to-be-ex-spouse are allowed to remain in their home during the divorce process and what their rights are during this time.
Note that every family law matter is highly fact-sensitive—what applies in one family’s situation may not apply to another’s. Working closely with an experienced family law attorney can help you better understand your rights and options for moving forward.
Is it possible to stay in my home while I’m going through a divorce?
In New Jersey, when a couple divorces, both parties have equal rights to reside in their home until the divorce is finalized. Even if your soon-to-be-ex-spouse purchased the home years before you even met them, they generally cannot require you to leave while the divorce is pending. (As with any legal matter, though, outcomes are dependent on the facts of your specific situation.)
If a divorce is less than amicable and living with your soon-to-be-ex-spouse is uncomfortable, you may make the choice to move out. Many parties starting the divorce process are concerned that this will impact their stake in the home, specifically as it pertains to the distribution of assets. However, moving out of your home does not eliminate your chances of retaining full or partial equity during a divorce; the final outcome of the equity distribution will depend on the specific facts of your situation.
What if we can’t agree about staying in the house during our divorce?
Agreeing on issues can be difficult during divorce. If you and your soon-to-be ex-partner cannot agree about residing in the home, steps such as mediation are intended to reduce conflict and identify potential compromises.
When would my spouse or I be required to move out during a divorce?
While both parties generally have the right to remain in their home during a divorce, there are some exceptions to this. The most notable are situations involving domestic violence. Courts typically do not require one spouse to leave a shared home unless a restraining order is issued against a party.
What should I do if I decide to move out before the divorce is finalized?
If you decide to move out, New Jersey state laws uphold that remaining in the family home during a divorce does not grant parties greater legal standing when it comes to equitable distribution—but depending on how payments are made following when you leave, this may affect credits and debits between spouses.
That being said, it’s important to take proactive steps to protect your interests. Before you move out, make sure you:
- Gather and make copies of financial documents and records, such as deeds, mortgage statements, tax returns, bank statements, etc.
- Inventory your belongings so you have a comprehensive list of items for later distribution
- Set up your new forwarding address so you don’t miss important letters, statements, and bills
It’s also vital to talk to your divorce attorney to ensure you are clear on any legal obligations, such as contributing to current household expenses. Moreover, if you and your partner have children, you should discuss your plans with your attorney. You may want to consider staying until you have an interim custody and parenting time plan in place.
Can I remain in the home after the divorce is finalized?
Home ownership depends on a range of factors during a divorce settlement. If it is determined that a home is a marital asset subject to equitable distribution, then you and your partner have several courses of action for whichever party stays in the home, assuming it is not sold (if owned) or a lease jointly terminated.
Some families negotiate for one or both parties to live in the home for a set time for various reasons, which can include wanting a child to finish school in a certain district, needing a certain number of bedrooms for custody and parenting time, and more.
Alternatively, one spouse could buy out the other to gain full equity in the home. With this option, alongside purchasing the other party’s home equity, both people would have to come to an agreement regarding who pays for what buyout costs, such as refinancing the mortgage.
These aren’t the only solutions available—families can benefit from taking a creative, individualized approach to resolving issues such as home ownership and living arrangements. Your divorce attorney can be a valuable partner in these discussions.
Find the right solution for your family
The attorneys at Jacobs Berger, LLC, have extensive experience navigating asset division and divorce settlements in New Jersey. We help you build strategic solutions to navigate the divorce process and protect your future.
Contact us to schedule your strategy session with our team.
