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Who gets the Marital Home?

Posted by attorney Jordan Gerber

The decision has been made. You’ve read the books your Pastor/Rabbi recommended. You’ve spent hours in a sweat lodge in Costa Rica meditating on it. You’ve spoken to your parents, your best friend and the guy that cuts your hair about it to the point where you’re sure one more “heart to heart" will result in a slap in the face or a very unfortunate bald spot. Finally, you have come to the realization that your marriage has reached its expiration date and you are mentally ready to move on. Physically, however, that’s a different story. Naturally, the first thought that comes to most people’s minds is Who gets the house?

In a previous post, we discussed the trend of the marital home being upside down and therefore now being categorized as a liability rather than an asset. Regardless if there is equity in the home or not, your main concern is where you’re going to be laying your newly single head down at night. Like any issue ancillary to divorce, the discussion of who gets the house can be complex. When there are minor children born of the marriage, the general rule is that absent special circumstances, the parent with the greater time-sharingshould be awarded the exclusive use and possession of the marital home until the youngest child reaches majority or that parent remarries. The parties remain tenants in common and each is responsible for the expenses associated with the property until the period of exclusive use and possession terminates. Worried about coming home to find the man formerly known as Mr. Wonderful sitting on the couch in his underwear watching football or the woman formerly known as Baby (and relatively sane) waiting in the kitchen with a steak knife to welcome you home from your first night back in the saddle? Don’t worry, a court order can negate a person’s right to enter the premises even if that person has an ownership interest in the property so you won’t have to worry about any uninvited house guests.

On the other hand, perhaps signing over the house you worked so hard to make a home to the one now affectionately referred to as “the Devil’s incarnate" makes you angrier than Uncle Jim Bob’s continuous political commentary on Facebook. Relax. Remember that “special circumstances" caveat previously mentioned? Special circumstances are found to exist where the parties incomes are inadequate to meet their own debts, obligations and living expenses, as well as expenses of maintaining the marital residence.

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