When divorcing couples think about or argue about the marital home, they often think about who will get how much of the home’s value. For many couples (and people in general), a marital home and the equity in that home is the most valuable asset that the couple ever owned in the marriage. There can be a lot of money in the value of that home, and thus, the possibility for a lot of fighting.

But What About Possession?

But before it is ultimately decided who gets how much of the equity in the marital home, comes the first question: Who will get possession and use of the home—that is, who will actually, physically be able to live in the home, while the divorce is going on, and before a judge can determine who gets to own the home?

Do You Have to Move Out?

Yes, some couples may be able to cohabitate in the same home during the divorce—there is no rule that says that anybody absolutely has to leave the marital home, while the divorce is going on. But practically, that can be difficult, stressful, and lead to fighting. It can also make it harder for couples to ever truly move on with their lives.

Leaving Voluntarily

One problem that a spouse has is that they may want out of the home immediately just to get away from the other spouse. But the kids will most likely remain in the home. That puts the moving spouse at a disadvantage, as they have already left, and thus, the other spouse (still living in the home, with the kids there) is more likely to be granted use of the home while the divorce is pending.

What About the Kids?

The kids’ best interests will also be considered. Often that means that the spouse that is best equipped to help the kids will get to live in the home. This can result in a “mini custody” trial, where the court is trying to determine which spouse is best suited to live in the marital home with the kids (although the spouse that moves out will still have temporary overnight visitation or timesharing with the kids).

Kicking the Other Spouse Out

However, in most cases, forcing another spouse out of the marital home so that you can live there on your own while the divorce is pending will only be allowed if there is hostility. For domestic violence.

The fact that you want to live in the marital home by yourself, just because you do not want to be with the other spouse, while understandable on an emotional level, is often not enough to convince a judge to kick the other spouse out of the home.

Contact our New Jersey family law and divorce attorneys at The Law Office of Agnes Rybar LLC today with questions about the marital home and what will happen to it in your New Jersey divorce.




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