By Robin Roshkind, Esquire, West Palm Beach, Florida
Many couples going through a divorce just don’t have the funds for separate residences. It is cheaper (not easier) to stay under one roof, until the divorce is final and the issue of the marital home is decided by the judge or agreed to by the parties.
For those couples lucky enough to have assets, or those in two income families, it is easier (not cheaper) to live separately and apart pending divorce proceedings. So how do couples decide who shall stay and who shall go?
First, you don’t lose your marital rights to the marital residence merely by moving out, if your name is on the deed or on the lease. The remaining party has no right to change the locks unless by agreement of the parties or court order.
Secondly, if there are children, it is understandable that they are going through enough changes during divorce. They should remain, if at all possible, in a stable home environment. So who is going to be the parent who will be or continue to be the major caregiver? It is that parent who should stay, as it is in the best interests of the children.
On the other hand, there are cases whereby only one of the parties can afford to pay the mortgage, maintenance, insurance and taxes. That is the party who should stay. The other should go, with or without children in tow.
In cases where neither party can afford the mortgage or expenses of the marital home, both should move out and rent the home or keep it as an investment property, or you both agree to list the house for sale and stay until it sells.
Lastly, where a home is in foreclosure or short sale status, you both should work it out to stay, because that is in both your best interests.
In some cases, both parties want the home or neither husband nor wife wants the home. Every case is different. If the spouses cannot agree, the divorce court judge will decide for you both.