Which spouse has immediate right to stay in the home?

UPDATED: Aug 9, 2011

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Which spouse has immediate right to stay in the home?

The wife and I are separated. She wants the house. We are both on the deed but the mortgage is in my name. I can’t afford it if she takes our 3 kids and gets child support. She will not be able to get it refinanced in her name (she is on unemployment and has poor credit). I am not behind on payments but will soon be.

Asked on August 9, 2011 Tennessee


L.P., Member, Pennsylvania and New Jersey Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Generally during a divorce, both people have the right to stay in the home during the proceedings.  The only time a court will intervene and order someone to leave their own home would be if the re was domestic violence or some other extreme circumstance.  Although it may be awkward or emotionally tolling to live with someone you are divorcing, legally you are both entitled to live in the house until the court has separated your marital assets or you have agreed upon a divorce settlement agreement. 


Even in more extreme circumstances, your wife would not be permitted to change the locks because it is still your home and it would be illegal for her to lock you out. 


As far as the different names on the deed and the mortgage, the handling of this scenario varies from state to state.  Generally banks will not allow an individual to be on a deed if there name is not on the mortgage.  However, some states will allow this.  Since your name is on the mortgage, you are considered solely financially responsible for the home, but both of you have an equity interest in the home.  Since you believe she cannot afford the mortgage, you could try to sell the home and a judge may order her to sign an agreement permitting you to sell the house because she is not financially capable of assuming the mortgage.  Furthermore, depending on when the home was purchased and the proof you have of how payments were made, you may be entitled to all of the proceeds from the sale of the home. 


Since you have a lot to financially gain or lose, it may be best for you to contact a family law attorney in your area to further discuss this matter

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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