couple speaking to an attorney in the house

Who Gets to Stay in the House During a Divorce?

By Michael DiFalco

From the beginning of a divorce, you’ll need to start making important decisions for yourself and your children. Determining which spouse can remain in the home during the divorce is one of the first decisions spouses must make.

If spouses are amicable, it is possible to make the decision together. However, if the couple cannot decide for themselves, it may require examining certain factors and circumstances to reach an answer.

The divorce attorneys at Aiello & DiFalco, LLP, can provide the legal guidance you need during these trying times.

Why It’s Tricky to Determine Who Gets to Stay in the Home During a Divorce

Property distribution is one of the main legal matters that must be addressed in divorce cases. However, final decisions regarding property division do not go into effect until a divorce is finalized, so what happens during your divorce?

A couple’s living arrangements during a divorce depend on their preferences and specific circumstances. Many spouses choose to remain living in their marital home during the divorce, while others find it impossible to share a home any longer.

Deciding who can stay in the marital home during divorce proceedings can be challenging, depending on the couple’s situation. 

The most important factor is almost always whether there are children residing in the home and each party’s access to the children. Courts dealing with children, especially younger children, are often in favor of allowing both parties to remain in the home during a divorce or custody dispute unless there are specific safety factors that pose a risk to the children or the other partner.

The second most important factor is whether the parties can afford to maintain two homes. Quite simply, it is difficult for many families to maintain their standard of living in one home. Add the costs of a second home, divorce lawyers, and other expenses, and it often becomes impossible to maintain any standard of living.

Determining Who May Remain in the Marital Home

In order to decide who can remain living in the marital home, especially after a divorce, it’s helpful to ask questions and examine certain details, including the following. 

Are both spouses’ names on the house’s title?

First, it helps to know who’s name is on the home’s title and whether the home is marital or separate property.

New York is an equitable distribution state, meaning property is divided fairly between spouses. Marital property is property acquired during the marriage, while separate property is property that a spouse had before they entered into the marriage. Marital property is the only type of property that’s subject to division.

If the spouses are living in a home that is solely in one spouse’s name and was acquired by that spouse before the marriage, they may have a stronger argument for remaining in the home.

On the other hand, if the spouses are living in a home they both acquired during their marriage, they would both have rights to the home, making it a more difficult decision.

Does the couple have children?

If there are children involved, they should be at the center of the decision.

Divorce can be stressful for everyone involved, including the children. Keeping the children in the home that they are accustomed to can help make the transition easier for them and give them a sense of normalcy during the divorce. Enabling both parents to have full access to the children during a divorce or custody disputes prevents one parent from having a leg up in those determinations.

If there are children, who is the primary caregiver?

If there are children and the parents wish to keep them in the home, it’s essential to determine who is the primary caregiver.

A Protective Order May Answer the Question for You

If there are issues of domestic violence in your marriage, your divorce lawyer can file for a protective order. 

In such a case, the other party may not be permitted to remain in the home. When protective orders are in place, your spouse is not allowed anywhere near you or your children, meaning they’ll need to vacate the marital home.

Rely on the Legal Guidance of a New York Divorce Lawyer

Deciding which spouse can stay in the home can be tough, depending on the circumstances. The family law attorneys at Aiello & DiFalco have the experience to help you with this and every other aspect of your divorce. Our legal team has the knowledge and skills to handle your case from beginning to end.

Contact us today to schedule a consultation with an attorney in Garden City, NY. 

About the Author
I am a partner at Aiello & DiFalco LLP, and my priority for my clients is to guide them through an arduous court case to provide them with the opportunity to write the next chapter in their life. I tailor my approach to each client’s priorities and positions, and to the extent that matters can be predicted, I will always provide a realistic perspective of how the law could be applied to the particular facts and circumstances of a case. Since I thrive on helping people and solving problems, I bring an optimistic and positive approach to practicing in a very difficult area of law. With more than a decade of experience handling hundreds of cases, I have the ability to get results on the issues my clients view as priorities. When cases or certain issues cannot be settled, I have a solid record of success at trials, hearings, and on appeals. Feel free to contact me for a free initial consultation, I am always available to help.