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Who Gets To Stay In The House During The Divorce Proceeding?
The party who gets to stay in the house during the divorce case is a complicated issue. There is no clear answer in the statutes and rules governing divorce cases. One of the more common reasons why a spouse is entitled to exclusive use and possession of the marital residence is that an order of protection is in place. An “order of protection” is what is referred to as a “restraining order” in many other parts of the country. That order of protection may grant to one spouse the right to the exclusive occupation of the residence as a result of the other spouse being excluded from the residence after having committed domestic violence.
It is important, if you want to remain in the house, not to give your spouse any reason to claim you have committed domestic violence against her. Domestic violence has been interpreted quite liberally in Arizona. Even mere phone calls, emails, and texts can be considered domestic violence, depending on the frequency and/or content of those messages. If no order of protection has been issued, but you would still like to obtain the right to exclusively use and possess the marital residence, then you must file a motion in your divorce case requesting this status. The judge will hold a hearing to determine whether one spouse should be excluded from the residence. Sometimes judges will refuse such a request and affirm that both parties have the right to reside in the residence.
This brings to mind the old movie War of the Roses, in which a couple residing together during a contentious divorce case engaged in all sorts of vindictive behaviors toward each other in the residence. Fortunately, the War of the Roses scenario rarely occurs. However, during the housing market recession of 2007-2012 it was quite common for divorcing couples to share the marital residence together during and even after the divorce, because they could not find a buyer for their house that was severely underwater (because the loan balance exceeded the value of the residence).
A question that sometimes arises is who must pay for the mortgage, utilities, and other expenses related to the house if one of the spouses has the exclusive use of the residence. In that scenario, the spouse who is in possession of the house is the one who typically is ordered to be responsible for the mortgage payment, utilities, and minor expenses related to the residence. The reasoning behind this is that the spouse who resides in the residence is enjoying the full use of the residence, therefore, that spouse should also be responsible for the monthly costs of residing there.
An exception would be if the rental value of the property greatly exceeds the monthly mortgage payment (or if the mortgage is paid off). In that case, the spouse who has the exclusive use and possession of the residence may have to pay to the other spouse half the difference between the fair monthly rental value and the monthly mortgage payment. For example, if the rental value is $2,000 per month, but the mortgage payment is $1,500 per month, the spouse who has the exclusive use of the residence may have to pay to the other spouse the sum of $250, which represents half the $500 difference between the monthly rental value and the monthly mortgage payment.
On the other hand, if you are residing together with your spouse in the marital residence, you should have a written agreement in place regarding which rooms are the private areas of each spouse, who is responsible for which chores, who is responsible for making the monthly payment to the lender and how the other spouse will take care of his or her share, etc. All sorts of problems can arise, and a good family law attorney can help you to avoid many of them by drafting a quality document that spells out the rights and responsibilities of each spouse while they are residing together during the divorce process.
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