Divorce ultimately results in the ex-spouses having separate households. A common question is whether one party can retain possession of the marital home while the divorce proceedings are pending. Except in rare cases, one divorcing spouse cannot just kick the other spouse out of the house on their own accord. However, one spouse may be able to stay in the home to the exclusion of the other if a legally sanctioned arrangement is established.
In Michigan, spouses usually have equal rights to the marital home. However, there are a number of factors that might support one spouse’s right to take exclusive possession of the property while a divorce is pending:
- Title or tenancy — Sometimes one spouse is on the deed while the other is not. Although the name on the deed is not always controlling, title can affect future living arrangements. Title is especially important where the legal owner-spouse acquired the property prior to the marriage. If the divorcing couple rents the home from a third party and only one spouse’s name is on the deed, the named spouse may be granted a right to sole occupancy.
- Children — The presence of minor children in the household greatly affects living arrangements. The courts consider a child’s best interests served by having a stable home. A court can authorize one parent to stay in the home with the children while the divorce is pending. Note that the other parent is not actually being evicted. The other parent is simply being awarded exclusive occupancy of the property incident to a divorce.
- Exigent circumstances — There are a number of situations that can justify the court awarding one divorcing spouse exclusive occupancy. If there is domestic violence involved, the alleged aggressor may be ordered to stay off of the property and away from other family members. The Covid-19 pandemic can also create special circumstances, such as when allowing one spouse access to the property might pose an undue health risk to the other spouse or children.
- Course of dealing — In many instances, the divorcing parties make new living arrangements on their own. One party will voluntarily move out of the marital home. The court can then formalize such voluntary arrangements and turn them into an order.
Although a divorce court has broad authority to enter interim and permanent orders, it cannot expunge or modify any third party’s property rights. For example, if both spouses are debtors on the mortgage loan, an order of exclusive occupancy to one spouse does not absolve the other of legal responsibility for paying the mortgage holder.
Interim living arrangements during a divorce can vary with the circumstances of each case. To confirm your residential rights, you should seek the advice of an experienced family law attorney.
If you are going through a legal separation or divorce, the dedicated and experienced attorney at Dawson Family Law, PLLC in Sterling Heights, Michigan can guide you through the process. We work diligently to protect your rights and help you achieve the best possible results. Feel free to contact us online or call 833-671-4445 for an initial consultation.
