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Can I leave the house during a divorce?

Can you leave the house during a divorce? 

The short answer can be broken down into 3 simple responses…If you want the house and you and your spouse are not amicable, stay in the house.

If you want the house, you and your spouse are amicable, and your spouse doesn’t want the house, then you can leave if you trust that your spouse won’t change his/her mind.

If you do not want the house, you can leave.

The long answer—not surprisingly—it’s complicated. Keep reading to learn from our experienced Oregon-based divorce mediator at Mediation Northwest to learn how to determine what’s best in your specific situation.

How does home equity play a role in your decision to leave?

Many times, people confuse the physicality of the house with the equity of the house. So, regardless of whether or not you stay or leave, you and your spouse are still entitled to the marital share of the equity of the home. 

Equity is the difference between what you owe on your mortgage and what your home is currently worth. As you pay your mortgage, the equity in your home will rise. Here’s an example: 

  • Home’s Value:           $700,000.00
  • Home’s Mortgage:    $300,000.00
  • Home’s Equity:          $400,000.00

What is a marital share, then?

If the house was purchased during the marriage, or if both parties’ names are on the deed, then most likely the house’s entire equity is marital (although of course, exceptions exist).

In our above scenario, the house’s equity of $400,000 is divided between both spouses, which yields a marital share for each party of $200,000.

If your spouse says that you can keep the house and then leaves, s/he is NOT saying you can keep the entire value of the home; rather, s/he is saying you can keep the physical home, but is still expecting his/her marital share in the home.

Leaving the physical home does not, however, admonish the spouse who has left from continuing to pay his/her share of the mortgage.

If the mortgage is in both parties’ names, and if the spouse who left doesn’t help pay his/her share of the mortgage, s/he is taking a huge risk that the other spouse will protect their credit and pay the mortgage.

Other things to consider

The sticky wickets that many couples forget to consider include:

(1) If you want the home and your retirement value is similar to that of your spouse, and you do not want to touch your retirement to buy-out the other spouse, then

(2) Can you afford to pull the spouse’s share of the marital equity from a refinance, and then

(3) Can you afford that new monthly mortgage/ tax /insurance payment?

Yes, it can get complicated depending upon your situation, which is why it’s best to hire professionals who have navigated thousands of cases similar to yours and know how to avoid the pitfalls.

You can start by talking to your spouse and agreeing who is moving out AND what that means for 

(1) Paying the mortgage until the divorce is negotiated, and 

(2) The marital equity.

Contact Mediation Northwest today

If you still have questions and want to schedule a consultation, contact Mediation Northwest to schedule a consultation. Want to know how much divorce mediation costs? Click here for our flat fee divorce mediation fees.

 

All information contained within this post is limited to Oregon. Always consult an attorney about your specific situation.