What Rights Do I Have Over the Matrimonial Home After Separation?

After separation, the matrimonial home is often one of the most significant assets to be divided during divorce proceedings. The rights you have over the matrimonial home depend on several factors, including the laws of your jurisdiction, whether you own the home jointly or individually, and whether the home is considered marital property.

Key Rights Over the Matrimonial Home After Separation

1. Right to Remain in the Home:

• If you have legal ownership or are named on the deed or mortgage, you may have the right to remain in the home, even after separation. In some cases, the court may grant one spouse exclusive possession of the home, especially if there are children involved or if it would be unjust to force one spouse to leave.
• In certain situations, if one spouse is causing harm or violence, the court may issue an order of protection or exclusive possession of the home for the other spouse.

2. Ownership and Title of the Property:

• If both spouses jointly own the matrimonial home (i.e., both names are on the title or deed), both have legal rights to the property. Even after separation, neither spouse can unilaterally sell or dispose of the property without the other spouse’s consent.
• If one spouse solely owns the home but the other has lived there or contributed financially (e.g., paying the mortgage, maintaining the property), the non-owning spouse may have claims to a portion of the home’s value in the divorce settlement.

3. Right to Equity in the Property:

• In many jurisdictions, the home is considered a marital asset, meaning that both spouses may be entitled to a share of the equity in the home. If the home is sold or refinanced during the divorce process, the proceeds from the sale would typically be divided according to the equitable distribution rules of the jurisdiction or any agreement reached by both parties.
• In community property states, the home may be divided equally, while in equitable distribution states, it may be divided fairly based on various factors such as each spouse’s financial contribution, length of the marriage, and future needs.

4. Possession During Separation (Temporary Orders):

• While the legal division of the matrimonial home will be settled during the divorce process, a court may issue temporary orders regarding who will reside in the home during the separation. These orders can provide temporary relief by granting one spouse the right to live in the home while the divorce is pending. This is especially important if children are involved or if one spouse would otherwise face significant hardship by leaving the home.

5. Selling or Transferring the Home:

• If you and your spouse both agree to sell the matrimonial home, the proceeds will be divided according to your divorce settlement or court orders. Alternatively, if one spouse wishes to keep the home, they may buy out the other spouse's share, typically by refinancing the mortgage in their own name.
• If the spouses cannot agree on selling or keeping the home, the court may intervene and decide how the property should be divided. In cases where the property cannot be sold, the court may issue an order for one spouse to buy the other spouse out.

6. Child Custody and the Matrimonial Home:

• If there are children involved in the divorce or separation, the court will consider their best interests when deciding who remains in the matrimonial home. In some cases, the court may grant the custodial parent (the parent with primary custody of the children) the right to stay in the home to maintain stability for the children.
• If there are no children involved, the court may be more focused on equitable division based on each spouse’s contribution to the home and the marriage.

7. Protection from Unauthorized Action:

• If your spouse is attempting to sell, refinance, or take any unilateral action regarding the matrimonial home, you may have legal grounds to prevent such actions. A family court can issue an injunction or order restraining your spouse from selling, transferring, or encumbering the property without both parties' consent.

Legal Considerations

8. Marital Property vs. Separate Property:

• In many jurisdictions, the home is considered marital property if it was purchased during the marriage or if both spouses contributed to its purchase, maintenance, or mortgage payments. However, if one spouse owned the home before marriage or inherited it, it may be considered separate property, which may not be subject to division in the divorce.
• If the home is partially marital and partially separate (e.g., one spouse owned it before the marriage, but both contributed to its mortgage), the division of the home’s value will be more complex and may require an appraisal.

9. Spousal Support and the Matrimonial Home:

• If one spouse is awarded spousal support (alimony), the court may consider the matrimonial home as part of the financial settlement. For example, the spouse paying support may be required to continue contributing to the mortgage or the spouse receiving support may be allowed to remain in the home for a certain period.
• The court may also look at the cost of maintaining the home and whether either spouse can afford to live there independently.

10. Moving Out:

• If you are the spouse who decides to move out of the matrimonial home after separation, you may still have rights to a portion of the property’s equity. You will not forfeit your rights to the home just by leaving, but it may affect how the court views your contribution to the home and whether you will be granted exclusive possession of the home in the future.

Example

A couple divorces after living in a home for 15 years. Both names are on the title, and they jointly paid the mortgage and other expenses. During the separation, the wife requests to remain in the house with their two children, as it provides stability for them. The husband agrees to sell the property, but they can’t agree on how to split the proceeds. After a court hearing, the judge orders the house to be sold, and the proceeds are divided equally since both parties contributed to the purchase and maintenance of the home during the marriage.

Conclusion

Your rights to the matrimonial home after separation will depend on various factors, including ownership, contributions to the home, and whether children are involved. If you have legal ownership or joint ownership, you likely have rights to remain in the home or claim a portion of the home’s equity in a divorce settlement. If you face challenges regarding the home, consider consulting with a family law attorney to ensure your rights are protected and to help navigate any legal processes involved in the division of the property.