Property Rights and Possession: The Legal Impact of Moving Out During Divorce

DISCLAIMER: This article is not a substitute for professional legal advice.  This article does not create an attorney-client relationship, nor is it a solicitation to offer legal advice.

            Some fear that moving out of the marital home may put them at a disadvantage in the division of marital property. However, physical possession of the house during divorce proceedings does not determine who ultimately receives it. Ownership of the home and who keeps the home are determined by several factors such as whether the home was purchased with marital funds, whether any portion of the home is separate property and if a spouse can afford to purchase the other spouse’s interest in the home. Because California is a community property state, if the couple purchased the home during the marriage with income earned during the marriage, then both spouses have an equal ownership interest.

            As a practical matter, many couples voluntarily decide who moves out of the marital home during the divorce proceedings. For example, if there are young children, the couple may agree that the parent who is the primary caregiver should remain in the home to minimize disruption in the children’s lives. However, this should not be interpreted as a reason to diminish the moving parent’s right to have regular visitation with the children. The parent who moves out should continue to exercise parenting time consistently and remain actively involved in the children’s lives.  Alternatively, if the couple cannot come to an agreement, the court is empowered pursuant to Family Code § 6324 to give one spouse temporary use and possession of the house. Whether the parties mutually agree on temporary occupancy or it is decided by court order, vacating the home does not affect ownership rights and does not constitute abandonment.

            With that said, the spouse who stays in the house is not automatically responsible for the entire mortgage or other home-related costs during the divorce. Both spouses are typically still responsible for shared debts, and agreements should be made to ensure that all ongoing financial obligations, such as mortgage payments, homeowner’s insurance, and property taxes, are timely and consistently satisfied. In California, there are established financial mechanisms designed to promote equity when one spouse remains in the marital residence during the divorce proceedings or when one spouse solely satisfies community obligations, such as the full mortgage payment, during the period of separation. For instance, if one spouse pays the entire mortgage with their post-separation (separate) income, they may be entitled to reimbursement of the other spouse’s share of the mortgage through what’s known as an Epstein credit, based on the California case In re Marriage of Epstein (1979). Conversely, if one spouse occupies the home exclusively, that spouse may owe fair market rent to the other spouse for using a shared community asset.  This is called a Watts charge, from the California case In re Marriage of Watts (1985).

Can a Spouse Be Removed from a Home Owned Before Marriage?

            If the house is clearly separate property under California law, then the owning spouse may have the legal right to ask the other party to leave. However, a home that was separate at the beginning of the marriage may have become partially or entirely community property, depending on what occurred during the marriage. For instance, if the non-owning spouse’s name was added to the title of the home, or if community funds were used to pay down the mortgage principal or significantly improve the home, a community interest may have developed. Unless the original owner only used separate funds to pay the mortgage and/or pay for the improvements or the couple has a valid prenuptial agreement designating the house as separate property, it can be difficult to prove the home remains solely one spouse’s property.

            Moving out of the home is both an emotional and strategic decision. Whether you intend to remain in the marital residence, vacate the property or seek reimbursement for financial contributions, a knowledgeable family law attorney can help protect your rights and ensure the proper legal procedures are followed.

Author Traci S. Mason is an attorney at Porter Simon licensed in California. She is the lead attorney for the firm’s Family Law Division where she focuses on all aspects of family law. Ms. Mason can be reached at mason@portersimon.com  or http://www.portersimon.com