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Marital House: Should I Stay or Should I Go?

If you are going through a divorce and you own a house, there are several factors that come into play as to whether you should pursue possession and eventual ownership of the house, or whether you should relocate to a different residence. An obvious factor in this decision, is whether there is equity in the home. The less obvious factor on whether to stay or go, involves the issue of child custody.

If there are minor children involved, as a divorce attorney, I will almost always advise my client to NOT leave the house – at least on a temporary basis. The reason for this is, if the Minnesota divorce is disputed/contested, and in particular if the issue of child custody is disputed, a decision will need to be made on temporary child custody and parenting time. One of the main objectives that the Court considers in assessing “the best interests of the children” to determine which parent will receive temporary custody, is to maintain the stability of the children. To maintain the stability of the children, the Court usually will want to keep the children in the house where the children had been residing. Thus, oftentimes, the parent who gets possession of the house pending the divorce, will also get temporary child custody (or at least the majority of parenting time) with the children. However, this is just a temporary order (a temporary fix) until a permanent solution regarding the house can be agreed to or decided.

As a part of any divorce proceeding, it is always an issue of “what to do with the marital house?” Normally, the house is an asset to be awarded to one of the spouses or to be sold with the net proceeds to be divided between the spouses. However, during the recession, oftentimes the spouses owed more on the mortgage than the house was worth, so the house was more of a liability. In such cases, the options regarding the house are more limited, and the spouses may agree to “let it go.”

A divorcing couple cannot stipulate in a court order that they will no longer pay the mortgage payments – because the Court cannot sign an order providing that the parties will violate the terms of their mortgage and promissory note. So, in these cases, it is usually “implied” that the payments will no longer be made. In such cases, one spouse will likely receive possession of the house during this process and they will each be liable for any costs and expenses associated with the inevitable foreclosure process.

When there is equity in the marital home, and when one of the spouses can afford the mortgage payments and other expenses associated with the house, can afford to pay off the other spouse’s interest in the home, and is able to refinance the mortgage to remove the other spouse’s name, then the Court will normally allow that spouse to remain in the home.