Who Has to Move Out of the House After Separating?

Who Has to Move Out of the House After Separating?

Both separation and divorce are similar on the grounds that you are legally broken up from your spouse. However, divorce is more permanent. In a separation, you remain legally married, but you may live separately and have court orders to allow for custody or visitation agreements. Given that you aren’t divorced in separation, both parties still retain their marital property. This includes the matrimonial home. This is the location where both partners lived prior to separation. Because you both retain the right to marital property, both parties have equal rights to live in the home and share the value of the home if it is sold. If there is conflict in your marriage and both remaining in the matrimonial house is not an option, legal action may be required. 

Court Orders

Having an ex-partner leave a family or matrimonial home is a difficult process. You cannot simply force them to exit, the home is still legally their property. If one party wishes the other to leave, it will often require a court order. The court has the power to force one ex-partner to exit the home under the Family Law Act if certain criteria are met. Such criteria include the risk of family violence or harm to the children, or domestic violence. However, domestic violence cases are often handled when an order of protection is applied. The first step to seeking out a court order is to speak with an attorney and identify whether your situation may qualify. 

Separation Agreements

A separation agreement is a legal document that declares both spouses legally separated from one another. When written appropriately, it should contain details about how to divide assets in the separation. This may include but is not limited to assets, debts, child support and visitation, and property division. If ex-partners are living in the same matrimonial dwelling, it may be helpful to draft expectations of that arrangement or detail who should vacate the home. An experienced attorney can help you write out a separation agreement to ensure that all necessary aspects of your life are being covered appropriately. 

Divorce Negotiations

If a court order for matrimonial home ownership isn’t in your future and a separation agreement isn’t plausible, a divorce proceeding may be your next step. A divorce is a big step in a legal separation, as it indicates that both parties are to be legally divided. Until now, a separation entails physical separation but maintaining of marital property, but this marital property must be divided accordingly in a divorce. If there is certainly no growth left in your marriage, consider a legal divorce. In these, properties – including matrimonial homes – are divided. This means that negotiations are conducted to identify who, if anybody, is permitted to maintain the home. Again, this is a serious step to take in separation and it should be discussed with both the ex-partner and an attorney.

Work With an Experienced Attorney Today

If you’re struggling to identify who retains what property in a separation and would like to alter legal living arrangements in that separation, working with a lawyer may be beneficial. Andrea Heckman Law has experience in both legal separations and divorce. To start discussing how we can best suit your needs in your separation, contact us today for a consultation.