Who moves out in a separation?

Unless there are minors under 18, the law cannot control who gets to stay in a house, and a judge is unlikely to, either. If a divorcing couple without children under 18 cannot work out who stays and who leaves, a judge might order the sale of the property. You should try to avoid that outcome, because court-ordered sales of real estate are rarely beneficial. If the house must be sold, you should have a realtor sell it so that you can get the best price. You will not get the best price in a court-ordered sale.

Are minor children involved in the separation?

However, it’s a completely different situation if you have minor children. In that circumstance, a judge has the power to award one of the spouses “use and possession” of the house. This order makes the question of who moves out in a separation a bit simpler. The purpose of this action is to help spouses recuperate after the divorce, get back on their feet, and allow the children to remain in a familiar place during these often turbulent times.

If the court orders exclusive use and possession of the family home to you, that means you can live in the family home with your minor children. A court may also order the other spouse to pay the mortgage on the house. 

By law, a use and possession order can go on no longer than three years after the date of divorce. But that could be five years from now. It’s also important to remember that these orders aren’t always granted to mothers. Whoever is the primary custodian of the children – whether that is the mother or the father – will most likely be awarded the home.

Use and possession is something that is often negotiated by lawyers as part of a marital separation agreement. Negotiations may include whether or not there will be a use and possession order, and if so, what its duration will be.

In addition to the family home, a judge may issue a “family use personal property” order. This order is pretty straightforward; whoever has custody of the children and receives the order may keep anything that is owned by one or both spouses. However, the court cannot grant use and possession of property if the item was acquired before the marriage. These items may include:

  • vehicles
  • furniture
  • appliances
  • other property

What is best for the family?

Most good lawyers are trying to keep the family out of the courtroom, so use and possession orders are often negotiated. Very rarely is the use and possession period actually three years after the date of divorce. That doesn’t happen frequently because money is tied up in the house. Each party should be concerned about stabilizing their children’s lives for a while, but children are far more resilient than most parents think. Children are probably the tougher participants in the process. Sometimes, children may even be excited by the prospect of a new house.

Divorce can be tricky, especially if there are minor children involved. It’s not always easy to decide who moves out in a separation, but with the help of the Coover Law Firm, the proceedings will go as smoothly as possible. Embrace the idea that it is possible to negotiate a comfortable landing point for your separation and divorce. 

Call Mr. Coover, a Howard County divorce lawyer, at (410) 553-5042 today to schedule a free case consultation.