Once a couple is married, disputes and arguments can sometimes cause one spouse to question why he married in the first place. This can lead to a separation or -- in more severe instances -- divorce. If one partner decides to move out or leave the residence, it's not as easy as changing the locks to keep him out of the house. Depending on the state in which you live, this can be unlawful, even if he's not on the lease or deed.
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In most states, it is the law that any dwelling defined as the "marital residence" is the possession of both inhabitants. Even if only one partner has legal claim to the property -- in terms of whose name is on the lease, deed or mortgage -- there is a series of steps that must be followed to evict or exclude the other person from the dwelling. This usually requires obtaining a court order of exclusive occupancy by the party who remains in the house.
Abandonment and Divorce
Expounding on most states' laws, changing the locks on the marital residence is considered abandonment. This can mean that if the case does get filed for divorce, it can be evidence for a fault divorce. If a fault divorce is granted, the petitioning party can ask the court for relief. The court may grant one or more of the following rights if petitioned: the right of return; the right to or return of property; or the right to compensation of expenses resulting from the abandonment.
Selling the House
If the two parties do file for divorce, the house will be considered marital property, while the mortgage will be considered a marital debt. Depending on the divorce decree, both will be divided by the court in some proportion. In many instances, this means one party can retain ownership of the house and the other can retain other items considered marital property; or it can mean the house will be sold and the proceeds will be split. A transfer of deed can be filed if both husband and wife have their name on the property and one person wants to retain ownership, but removing a name from the mortgage may mean refinancing is required. Only property owned by either spouse, before the marriage, can be considered separate; and it may or may not be contested, depending on your spouse's involvement with upkeep and financial matters.
Alternatives to Divorce
In any event, a potential breakdown of communication leading to a separation or divorce means that you should consult an attorney. Mediation or marriage counselling can be considered if both parties are willing to reconcile, and can give both parties a chance at resolving their issues without going to trial. In addition to being less expensive than a trial on most occasions, mediation usually has better outcomes and thus better compliance with the resolutions created.
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