Can I leave the house during a divorce?

Can I leave the house during a divorce? It’s an easy answer.

  1. If you want the house and you and your spouse are not amicable, stay in the house.
  2. 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.
  3. If you do not want the house, you can 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 be entitled to the marital share of the equity of the home. What’s equity?

Home’s Value:        $700,000.00

Home’s Mortgage: $300,000.00

Home’s Equity:      $400,000.00

What is a marital share? 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 (of course, exceptions exist). So, in our above scenario, the house’s equity of $400,000.00 is divided between both spouses, which yields a marital share for each party of $200,000.00.

So, if your spouse says, 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 I am still expecting my 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.

The sticky wickets that many couples forget to consider are: (1) if you want the home, your retirement value is similar to each other, 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 you hire professionals who have navigated thousands of cases similar to yours and know how to avoid the pitfalls.

My advice is to talk to your spouse and agree who is moving out AND what that means for (1) paying the mortgage until the divorce is negotiated, and (2) the marital equity.

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

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