A very common question I receive from clients is, Who can live in the home during the divorce?
The easy answer is, BOTH of you can live in the home while the divorce is pending. If one or both of you does not want to or cannot afford to move out, then you may stay in the home.
There are two exceptions to this:
1) one spouse is committing domestic violence, or
2) when there is constant arguing in front of the kids.
Domestic Violence
If a spouse has committed domestic violence, the appropriate course of action would be to secure a domestic violence injunction. In that case, the sheriff will likely serve an order requiring the spouse to move out of the marital home.
Exclusive Use and Possession
In the second scenario, a spouse may petition the court for “exclusive use and possession” of the home. This does not give you the right to change the locks, nor does it mean the ousted party loses his or her property rights. The order is issued on a temporary basis and only means the ousted party cannot enter the premises without your permission.
If you petition the court for exclusive use and possession of the marital home, or if your spouse voluntarily moves out, be sure that you can pay the mortgage and take care of the bills. If you cannot; for instance, if you are a stay-at-home mom, ask the court to order your spouse to continue to pay the mortgage while the divorce is pending.
If you can make it work, moving into separate rooms in the joint marital home might be the best, most fiscally responsible way to handle the issue until the divorce is final.