2. Agree on who stays in the home

We're married. Who gets to stay in our home if we separate or divorce?
This question has an answer and 3 steps
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2. Agree on who stays in the home

You and your partner may have to decide on who stays in the matrimonial home after you separate. Some of the things to think about when deciding are:

  • Do you or your partner have other places to live? How quickly can you move to this place?
  • Does one partner need to be in the house? For example, do they work from the home?
  • Are your children going to be affected if they move out? What connections do the children have to the location, for example, schools, friends, and activities?
  • Should the parent who mostly looks after the children be the person who stays in the house?

If one partner agrees to move out, they may move out on certain conditions, such as:

  • they get time to get their personal items, such as clothing and paperwork
  • mail is redirected to their new address
  • they still get to see the children

If one of you moves out, you and your partner need to decide who pays for costs such as electricity and property taxes. You might also need to consider who does yard work, home repair, or maintenance tasks for the home.

Agree to sell the home

You and your partner may agree to sell the home. Everyone who is an owner of the home needs to agree for the home to be sold, unless you have a court order.

A married partner must also agree to sell a matrimonial home, even if they are not an owner. You need their written permission or a court order to sell a matrimonial home.

If your partner is going to sell their share of the home to you, you usually have to qualify for a new mortgage without your partner. You and your partner also need to agree on how much you pay to buy the home. You can ask a real estate professional to help you agree on the value of the home.

If neither of you is going to keep the home, you should think about how to sell your home. For example, you might want to agree to have the home cleaned up and listed for sale by a certain date. You might also want to agree on a real estate agent to help you.

You should also include in your agreement what happens with the sale money from your home.

If you and your partner agree, or a court orders that the home be sold, the mortgage and real estate fees are paid first and then you and your partner divide the money that remains. You might not divide this amount evenly. It depends on what the title to your home says and what your agreement or court order says.

You can agree on who lives in the home or to sell the home in a separation agreement. Your separation agreement can also deal with how to divide property, support, custody, and access.

If you and your partner cannot agree on who lives in the matrimonial home and how to divide property, you can get help from a family law professional or go to court.

You can agree on how to divide the matrimonial home and other property at any time, but there are time limits. The time limit to make a claim in court for an equalization payment is 6 years after you and your partner separate or 2 years after you get divorced, whichever happens first.

Because you may be giving up important rights by moving out of the matrimonial home or signing a separation agreement about who lives in the home, you should think about talking to a lawyer.

If you can't afford to hire a lawyer for your whole case, some lawyers will provide "unbundled services" or "limited scope retainer" services. This means you pay them to help you with part of your case.

If you can't afford to hire a lawyer at all, you may be able to find legal help in other places.

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Family Law Education for Women
Reviewed: July 31, 2017

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