If you want to obtain possession of your home after your divorce, do not move out. Get your spouse to leave, if at all possible.
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Think about which parent your children will live with. It usually makes the most sense for the children to remain in the home.
Know that if you get custody, you have a better chance of getting the house. But don't ask for custody just because you want the house. The children should live with the parent who has the most time and best parenting skills.
Consider the mortgage payments. Will you and your ex-spouse be able to afford them after the divorce? The two of you are going to have the same total income you had before the divorce, but you will have to pay for a second residence.
Ask your spouse to move out as soon as you know you want to keep the house. You will have a better chance of being awarded the home if you are the only one living in it.
Do not move out yourself. It may be nearly unbearable to live in the same house with your soon-to-be ex, but if you leave, you're less likely to get possession.
Ask the court for a removal order, which will give you temporary possession of the home and force your spouse to move out while the case is heard. Removal orders are generally granted when there is danger of physical abuse.
Be prepared to prove to the court why you should get possession. Some good reasons are: you run a business out of the home and it would be a hardship to move the business, you have custody of your children, you have the ability to care for the home, you can make the mortgage payments.
Tips and warnings
- Be sure that you really want possession of the house. Are you able to handle repairs or hire people to do them?
- Most courts will expect the person who keeps the house to bear at least some financial responsibility for it. Don't expect that your spouse will have to pay for it all.
- If you do get possession of the house, change the locks immediately so that your spouse cannot enter without permission.
- Consider mediation to help you and your spouse reach an agreement about the house and other issues.