What to know about breaking your lease in a divorce
Your lease is marital property
The first thing to know is that your lease is martial property. Your rights to this rental property are called leasehold. Since you likely rented your martial home while married, both you and your spouse have rights to it, and, just like every other martial property, it must be divided. State laws regulate all marital property, including your leasehold.
The easiest thing to do is to wait until your lease is up. If your lease is up before the divorce is final, there is nothing to be divided. If, however, you have a lease longer than a year, or your divorce is final before the lease is up, ask your attorney for help.
Dividing your leasehold is something the courts can do by granting it to you or your spouse. If this happens, there are several things you need to remember.
How to keep your lease
If, for example, the courts decided that you get to live in the marital residence, it is still your responsibility to communicate and work this out with your landlord. Just because the courts decided that only one of you lives there does not necessarily mean that your landlord will agree.
You and your spouse will need to sign an agreement stating the following and consider submitting a copy of it to your landlord:
The agreement must transfer all rights as lessee under the lease to one spouse. This must be signed by both spouses.
Confirm in writing that the spouse staying in the rental must pay all rent and utilities fees.
If your landlord will not remove the name of the spouse moving out from the lease, consider including in the written agreement a "hold-harmless" clause. This clause means that if anything happens to the rental, the spouse who moved out is not held responsible.
Specify when the occupancy rights of the other spouse end in the event of new cohabitation or remarriage. For example, state how your ex-spouse will no longer be allowed to live in the rental if you are remarried.
In the agreement specify how lease rights (such as options to purchase) and possible refunds (of security and cleaning deposits) will be handled. If you do get your deposits back, you need to have in writing who will get to keep that money.
How to get out of your lease
If you choose to break your lease, it will be an added difficulty. While not the advised path, in some cases, such as getting a new job, it may be unavoidable.
If you choose to do this, there are some important steps to take:
Talk to your landlord, and see if you can come to an agreement.
You may, with the landlord’s permission, try to sublet you apartment. Remember that in doing this you will likely still be responsible for any damage to the rental unit.
You may try to find a new renter to take your place. For many landlords, if they don’t lose money, they will let you out of a lease.
If possible, have an attorney help you familiarize yourself with your state laws and your rights as a tenant.
Most states will let you out of a lease if you get a job in another state, if there was domestic abuse, if you are seriously injured and hospitalized, if you are called to active military duty, or if you declare bankruptcy.
You may be able to get out of your lease if your landlord violated any of the terms. Check with your state laws to see what landlord/tenant laws are in your state.
There may be a buyout clause in which you can purchase the remaining time in your lease and end it.
If none of the above work, be prepared for more drastic actions:
You will have to pay at least one additional month’s rent.
You will probably lose your security deposit.
Depending on your landlord, you may end up in court.
In addition, there are a few other important tips to remember:
Find out if changes in who holds the lease have any effect on rent price or rent control protection.
The spouse keeping the rental should make every effort to remove the other spouse from the lease.
Try to communicate well with your landlord, and pay your rent on time. Good behavior may be rewarded.
Keep all of your actions completely legal. When in doubt, always check with a lawyer.
In the end, it is far better to hold on to your lease until the time is up or to come to an agreement with your landlord. Try to avoid taking or being taken to court by your landlord.
Your divorce attorney is likely to have good advice to help you avoid another court case and to help you protect yourself.