Deciding Who Gets to Live in the Family Home During a Divorce


Q: My husband and I recently decided to separate after many years together. Because we jointly own the house and are both named on the mortgage, I believe we should each be entitled to time living alone there. (Our children are grown, so there are no custody issues.) My husband disagrees and refuses to leave our home for any amount of time. Since I own half the house, do I have the legal right to have it to myself half of the time?

A: As a married couple, you and your husband jointly own the house, with equal rights to it. So you both need to be in agreement about what to do with the property. Neither of you can sell the house without the other’s consent, nor can you limit each other’s access to it. It’s as much his house as it is yours.

“If they bought it together and maintained it together, it’s marital property and most likely it would be divided 50-50,” said Charles B. Law, Jr., a family lawyer in the New York City office of the law firm Cozen O’Connor. “Most likely, they would be both entitled to live there until the place is sold.”

For the moment, set aside your immediate desire to share time at the house and, instead, figure out what you ultimately want for the house once your divorce is finalized. Do you want to keep the house? If so, you may eventually need to buy out your husband when you divide your assets. Or do you want to move? In that case, your husband could either buy you out or you could sell the property and divide the assets.


Once you have a better sense of your long-term goals, try to reach a temporary agreement for how to weather this transition period. That may mean that you alternate time spent in the house, or it may mean that one of you moves out, or that you both continue to live there until you can sell the property and move on with your lives. Moving out will have financial ramifications for both of you and those need to be carefully considered.

If you can’t reach an agreement, contact a mediator to help you navigate the negotiation. The alternative means hiring a lawyer, and if you start litigation, “it’s going to get expensive,” Mr. Law said. “It’s time consuming,” and could ultimately be decided by a judge. “Then your problems are not yours to resolve, and that’s a crapshoot.”

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