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Which of the spouses may live in the marital home during the divorce?

reading time 2 minutes published on 08 February 2021

When two spouses own a home together, a common question is which of them may continue to live in the home during the divorce. If the home is jointly owned, both spouses have an equal right to stay in the home. One spouse may not deny the other spouse access to the home or change the locks of the home.

It is preferable to make agreements in consultation as to who will use the property during the divorce. There are a number of options here. One of the spouses can leave the property and stay elsewhere temporarily. Another option is for both spouses to take turns in using the property. This can be a good option, especially when there are children to care for. This is called “birdnesting”. In this option, the children stay in the home permanently and the parents commute back and forth.

In the event that the parties are unable to reach an agreement, the judge may decide who can continue to live in the home for the time being, during the divorce proceedings. The judge will weigh up the interests on the basis of all the relevant circumstances, including:

- How is the care for the children arranged? The starting point here is that the children can continue to live in their familiar surroundings for the time being.
- The financial circumstances. Which spouse is able to pay the living expenses during the divorce? But also which spouse is financially capable of taking over the property after the divorce?
- Is one of the spouses bound to the home, for example because of work or physical limitations?
- The possibilities of being able to stay somewhere else.

If one of the spouses asks the court for exclusive right to the house and the request is granted, this applies in principle for six months after the divorce. A court may also set a shorter period if the circumstances warrant it. The spouse who is not allowed to use the home can ask the other spouse during this period for financial compensation for the use of his/her part of the home.

During the period in which one of the spouses lives in the property with the exclusion of the other, it can be considered what should happen to the property after the divorce. The decision will depend in particular on who wants to take over the property and whether this spouse is financially capable of doing so. If there is a mortgage on the property in both spouses’ names, the mortgage provider must agree to take over the mortgage and release the other spouse from joint and several liability with regard to the mortgage. If both spouses are not interested in taking over the property or are unable to finance it, the only option is to sell the property to a third party.

If there is uncertainty about who may continue to live in or use a property and you cannot resolve the issue, please contact me. I am happy to think along with you.

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