What Happens to Our Marital Home?
One of the most common, if not the most common, issues that divorcing couples fight over is the marital home. The marital home is often the most valuable asset purchased when married, while also holding many fond memories and giving a sense of security. It’s not easy to just pack up and move, especially with little notice and time to do so.
Divorce is emotional and stressful, so adding the pain of deciding who is going to stay and who is going to move, often leads to more hard feelings and higher attorney’s fees when there is conflict.
There are also many common misconceptions when it comes to leaving or staying in the marital home prior to, during, and after the divorce process. Let’s look at some:
- “If I move out, I can’t get back in.”
- “We can stay together during the divorce and just let the judge decide.”
- “There has never been conflict or abuse before, so that won’t be an issue if I stay.”
- “I’m the breadwinner and pay the mortgage, so if I move out, he/she will have to pay the mortgage and bill.”
- “My spouse will claim ‘abandonment’ if I move out and it will affect custody.”
- “Isn’t ‘possession’ nine-tenths of the law?”
First, there’s no truth to the myth that if you leave the home, you’re relinquishing your rights to it. The reality is that Judges understand that often someone needs to leave in order to avoid conflict. Leaving the home isn’t relinquishing any rights to the home and in fact, until there is a court order in place it is still your home. When a dissolution of marriage petition is filed, there is a mandatory injunction that goes into place, which means that neither you nor your spouse can do anything that could financially or otherwise harm the other. That means your spouse can’t dispose of property or do anything to damage the marital home even if you leave. If they do, they risk sanctions at future hearings.
Colorado is also a “no fault” state meaning that you don’t need a reason to get divorced and also your spouse can’t make claims against you, such as “abandonment.”
Second, in deciding whether you should leave or stay, you need to be honest with yourself. Is there going to be conflict? Is your spouse the kind of person who would make a false report? If you think there is even a possibility of someone being arrested or a conflict rising to the level of police involvement, you should leave. It’s just not worth it. It could affect parenting time.
So, who pays the bills? Due to the injunction mentioned previously, the person who historically paid the bills, including the mortgage, is responsible to keep doing so even if they’re the one that moves out. Depending on the situation, this could be changed by a Judge at a hearing prior to your final hearing. But until you have a court order, you need to keep paying what you historically paid throughout your marriage.
Last, will it affect custody? The short answer is no. Property division and parenting are separate considerations. If you get into a conflict, however, that results in any type of domestic violence claim, this could affect parenting time. That’s why it’s so important to sit down and talk to an experienced attorney as soon as possible to work through these considerations.