Everything seems uncertain when you decide to file for divorce or get served with paperwork after your spouse files. Couples with a prenuptial or postnuptial agreement will at least be able to predict the general outcome of the property division. Although such documents are more popular than they were decades ago, the majority of couples seeking a divorce do not have a marital agreement in place.
Instead, they will either need to work to settle issues on their own or go to court and ask the judge to rule on their situation. In cases where the final outcome depends on court rulings, it’s common for people to feel nervous about what will happen with their property.
Myths abound, and you could easily get bad advice from those with good intentions. People might tell you, for example, that moving out of the marital home means you lose your claim to it in the divorce. Do you really have to keep cohabitating with your ex until the courts finalize the divorce to claim your share of the home?
Your right to the home doesn’t depend on your occupancy
Perhaps someone in your inner circle once heard a story about someone who moved out of their marital home and then never got to go back because of a divorce. Such stories may have a grain of truth at their core but likely reflect the exaggeration of circumstances that occur when people want a story to have more dramatic effect.
Just saying that the court agreed that the spouse who didn’t temporarily move out could retain possession until the end of the divorce isn’t as exciting or dramatic as saying that someone lost their house because they moved into a motel. While leaving the home may affect your right to occupancy, that doesn’t mean you don’t still have a claim to ownership of the home.
Most marital homes are marital property
Although there are certain exceptions, most homes occupied by a married couple will be the joint or marital property of both spouses. Both spouses likely contribute to the financial maintenance of the household and the physical upkeep of the property. Marital resources like income earned by either spouse often go toward the maintenance of a property, making it likely that this marital asset is subject to equitable division even if one spouse contributes more financially.
Regardless of who currently stays in the home, a judge will still allocate a fair and equitable share of the home’s value or equity to you. A more thorough review of your family circumstances can help you clarify whether your home is marital property or not and what you can expect from the property division process in your upcoming divorce.