How do I keep custody of my house during a divorce? 24 Answers as of June 09, 2011

My husband wants to take our house away from me and is attempting to get custody of it during our divorce. I do not have a place to go and want to keep the house as my own. How can I do this?

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Beresford Booth PLLC
Beresford Booth PLLC | S. Scott Burkhalter
You should file a motion for temporary orders.
Answer Applies to: Washington
Replied: 6/9/2011
Deal & Hooks, LLC
Deal & Hooks, LLC | Shawn P. Hooks
The Court can issue an order as to who is allowed to remain in the house while the divorce is pending. If the house is in just his name, however, it is less likely that you will be able to have possession of it. If it is in both of your names you have an equal right to possess the house. If you have different income levels and he is making much more than you it may be possible that you are given court ordered spousal support in the event that you are not granted possession of the house to help you find suitable housing.
Answer Applies to: Ohio
Replied: 6/8/2011
Law Office of Karen A. Clark, L.L.C.
Law Office of Karen A. Clark, L.L.C. | Karen A. Clark
There are several factors to consider when determine the division of assets. Your best bet would be to discuss your financial situation (as a couple and as an individual) with a Financial Divorce and Home Lending Specialist.
Answer Applies to: Washington
Replied: 6/8/2011
Michael Anthony Wing, P.C.
Michael Anthony Wing, P.C. | Michael Anthony Wing
Don't move out. Wait for the divorce order where the court will consider the cause of the breakup when dividing the marital estate. Stay well.
Answer Applies to: Alabama
Replied: 6/8/2011
Joanna Mitchell & Associates, P.A.
Joanna Mitchell & Associates, P.A. | Joanna Mitchell
You Husband cannot just throw you out of the house. If it is the marital residence where you both resided during the marriage, even if your name is not on the deed, mortgage or note, he cannot simply kick you out. I would suggest speaking with an experienced family law attorney as soon as possible. As for keeping the house, that depends on multiple factors, and more information would be needed in order to discuss your options. My office offers free initial telephone consultations if you would like to discuss this matter in more detail, as well as explore the potential rights and options available. If you would like to coordinate a free initial telephone consultation, please contact my office.
Answer Applies to: Florida
Replied: 6/7/2011
    Warner Center Law Offices of Donald F. Conviser
    Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
    Houses aren't things you get "custody" of. I believe that you are saying that you want to stay in the house until the divorce, and perhaps, you would like to get the house in the divorce Judgment. You don't have to move out of your house during the divorce. However, if a party commits domestic violence or threatens domestic violence, the Court can issue restraining orders excluding the party from the house. Whether or not you get the house in the divorce Judgment depends upon whether there are sufficient other assets that your husband could get to equalize the house equity that you would receive, or whether you have the ability to borrow sufficient funds to pay your husband his share of the equity, and whether your husband would willing to sell his community share of the house to you. It would be a good idea for you to get the house appraised by a certified appraiser, to determine the amount of equity that the community has. If either party put premarital monies into the house, that party would have a separate property reimbursement off the top of the house equity in the traceable amount of community funds put into the house, and the balance of the equity would be community property. If you can't afford to buy out your husband, the Court would likely order the house sold, or if your husband could borrow enough to fund a buyout of your community share, that may occur. If your husband funds a buyout of your community share, no commissions or closing costs would be deductible, whereas if the house were sold to a 3rd party, the net proceeds of sale would be after commissions and closing costs are deducted.
    Answer Applies to: California
    Replied: 6/7/2011
    Theodore W. Robinson, P.C.
    Theodore W. Robinson, P.C. | Theodore W. Robinson
    Speak to a matrimonial attorney right away. That's the best thing you can do. You should not have to move out just because he wants you to. On the other hand, neither should he. That's why you need to speak to an attorney. Good luck.
    Answer Applies to: New York
    Replied: 6/7/2011
    Glenn E. Tanner
    Glenn E. Tanner | Glenn E. Tanner
    When you file, move or motion the court for either or both an ex parte restraining order keeping you and the kids in the home or temporary orders doing the same thing.
    Answer Applies to: Washington
    Replied: 6/7/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    A Court makes determinations regarding property division based on a broad palatte of facts including the equity in the property, each party's income and ability to afford the property and the division of other assets and debts. As a result, a full review of the facts would be required to evaluate property and debt issues.
    Answer Applies to: Minnesota
    Replied: 6/7/2011
    Law Office of Robert L. Fiedler
    Law Office of Robert L. Fiedler | Robert L Fiedler
    Sounds like you both want the same thing. Until the two of you figure out who is moving or a court orders it, the two of you will probably both continue living in the house together. You would have to work out who is paying the bills.
    Answer Applies to: Connecticut
    Replied: 6/7/2011
    Fredric H. Aaron, Attorney at Law, P.C.
    Fredric H. Aaron, Attorney at Law, P.C. | Fredric Harlan Aaron
    If your divorce is currently pending before a judge, you or your attorney can file a motion for pendente lite relief, which can grant you possession of the marital home while the case is still pending. This will allow you to stay in the house, although it does not mean that you will receive the house in the divorce under equitable distribution.
    Answer Applies to: New York
    Replied: 6/7/2011
    Law Office of James Lentz
    Law Office of James Lentz | James Lentz
    If the house was acquired during the marriage, you have as much of a right to stay there as your husband does. In many cases that means you share it until you both agree to sell it or the court forces sale or you come to terms where one of you get s the house (and a new mortgage) for your share of the marital assets. Talk with your domestic relations counsel about staying in the house during litigation.
    Answer Applies to: Ohio
    Replied: 6/7/2011
    Seattle Divorce Services
    Seattle Divorce Services | Michael V. Fancher
    Under Washington law what happens to the house is one of the issues for the court to decide at trial. If one party is living in the house at the time of trial, that may increase the odds that the house would be awarded to that party. However, you may want to talk to a financial consultant as to whether being awarded the house is really the best thing for you. It may be better to have the house sold to divide the proceeds, or take other assets in lieu of the house, and purchase or rent something more affordable.
    Answer Applies to: Washington
    Replied: 6/7/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    You get a lawyer and argue your case. Then it's up to the court. Bear in mind that without counsel your case is almost guaranteed to go badly.
    Answer Applies to: Georgia
    Replied: 6/7/2011
    Goolsby Law Office
    Goolsby Law Office | Richard Goolsby
    I would recommend you retain an experienced divorce lawyer in your community to represent you as to the property division and other issues in your divorce case. Good luck!
    Answer Applies to: Georgia
    Replied: 6/7/2011
    Law Offices of John J. Ferry, Jr.
    Law Offices of John J. Ferry, Jr. | John J. Ferry, Jr.
    It depends on the jurisdiction and may depend on how the deed is worded. You should discuss this with an attorney that regularly practices in your area. You may need to file a motion asking for interim relief, that is, a court determination of what should happen while the divorce is pending.
    Answer Applies to: Pennsylvania
    Replied: 6/7/2011
    Michael Apicella
    Michael Apicella | Apicella Law and Mediation
    You need to file a motion with the court requesting exclusive occupancy. There are many different facts and circumstance that may affect the judge's ruling on such issue. It would be best to contact a local family law lawyer to discuss the particular facts of your case to develop a proper plan of action. Good luck!
    Answer Applies to: California
    Replied: 6/7/2011
    Law Office of Richard B. Kell
    Law Office of Richard B. Kell | Richard B. Kell
    I am sorry to hear about your situation. Unfortunately, there is no simple "how to" answer to your question, as this will depend on much more information that can be exchanged online. The single best thing you can do at this point is to consult/retain a qualified divorce attorney to assist you with your case.
    Answer Applies to: Massachusetts
    Replied: 6/6/2011
    Law Office of L. Paul Zahn
    Law Office of L. Paul Zahn | Paul Zahn
    You can be awarded the home if you can buyout your husband's interest in the property and can afford the payments. If you are in my area, please contact me for a free consultation.
    Answer Applies to: California
    Replied: 6/6/2011
    Gregory T. Buckley, Attorney at Law
    Gregory T. Buckley, Attorney at Law | Gregory T. Buckley
    Depending on where in the divorce process you are, you can make a Motion for exclusive use and possession of the marital home during the pendency of the divorce proceedings. Of course, your husband can make the same type of Motion.
    Answer Applies to: Florida
    Replied: 6/6/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    If you and your husband cannot agree, it will be up to the Court to decide who gets to keep the house. While the case is ongoing, the Court can/will only decide who has temporary possession to live in the house. In connection with the final orders property settlement, when the parties can't agree the Court will usually order the property to be sold. But, the actual facts and overall financial situation may justify a different result. You need to consult an attorney who can evaluate your situation based on a thorough understanding of all the relevant facts.
    Answer Applies to: Colorado
    Replied: 6/6/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    You cannot remove someone from their house during the divorce unless there is a court order stating otherwise. If he brings such a motion, object.
    Answer Applies to: Connecticut
    Replied: 6/6/2011
    Van Der Jagt Law Firm
    Van Der Jagt Law Firm | Grant Van Der Jagt
    You need an attorney to help you file the appropriate papers.
    Answer Applies to: Colorado
    Replied: 6/6/2011
    Law Office Of Jody A. Miller
    Law Office Of Jody A. Miller | Jody A. Miller
    You need to have a consultation with an attorney regarding the specific facts of your case and they can advise you, after a detailed consultation and discussion of the background of your situation, how best to attempt to achieve your goal. This question cannot be answered without a fact-based, specific discussion of your case. The short answer is for the most part, neither spouse has to leave at the mere request - or demand - of the other. In order to gain sole possession of a house in a divorce case, you need to ask for a court order in a temporary hearing.
    Answer Applies to: Georgia
    Replied: 6/6/2011
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