Who Has to Leave the House in a Divorce in SF Bay Area

Divorce situations can get complicated, and it’s common for couples to prefer separate living arrangements while proceedings are underway. But when it comes to who vacates the shared property, what determines that?

Determining which spouse exits the marital property during divorce hinges on various factors like state regulations, property ownership, financial independence, instances of abuse, presence of children, and who resided in the home during separation. If the couple can’t come to an agreement on their own, the court will intervene, considering these factors.

Keep reading to understand who typically leaves the property during divorce and explore alternative housing options.

Who Has to Leave the House in a Divorce in SF Bay Area

Dividing property in a divorce can be a big issue for many couples. One key factor in deciding who stays in the house is whether it’s considered shared or individual property.

Shared property is owned by both spouses if they got it while married. This can include the family home, vacation homes, and more. If spouses can’t agree on whether something is shared, the court will look at evidence to decide and then determine who gets it.

Individual property is something one spouse owned before marriage or after separating. In a divorce, the other spouse doesn’t have a legal right to it.

Sometimes, individual property can become shared if it’s given to the marriage. For example, if one spouse adds the other’s name to the house title, they both own it legally.

To understand how these rules apply in your area, it’s best to talk to a local lawyer who knows the specifics of your state’s laws

Marital and Separate Property: Is There a Difference In California

Before we talk about who needs to go from the home in a divorce, let’s discuss who gets the home in a divorce…

Ultimately, the divorcing partners can decide who gets the home. However, if the divorce is complicated and both want to keep it, the court would have to decide.
Both ways of deciding who gets the home have their good and bad points.

Firstly, when the partners decide themselves, they can avoid the lengthy legal process of asking a court decision. However, this may also mean that one partner could outsmart the other.

Who Decides Who Gets the House in a Divorce SF Bay Area

A judge’s decision, however, is usually fair because it’s often based on numbers and other factors. The downside is that it’s costly for both partners, especially if they need family law and divorce attorneys. Also, the home needs to be valued.
Ideally, before going to court, divorcing partners should determine who stays in the home. This is especially recommended if the divorce is friendly and both partners are sensible. However, most divorces are complicated…

When the spouses cannot decide who has to leave the house in a divorce, the court takes matters into their hands. The decision of a judge on where the marital property belongs is based on several factors and they are as follows:

State Laws
In some places, both spouses are seen as owning a marital home, regardless of whose name is on the title. So, they both get half of the home’s value, and they can both live there if they want to. This is how things work in community property states.
But in other places, called equitable distribution states, it’s more complex. State laws decide who gets what.
In these states, a judge tries to be fair, but one spouse may still end up with more. This often happens when one spouse paid more for the mortgage and home upkeep.
For example, one spouse may get both houses while the other gets the car and some other things

Who is on the Title Deed
In most cases, if both spouses’ names are on the property title, they share equal rights to the home. However, in many states, the name on the title deed doesn’t affect ownership.
Anything bought during marriage, especially in community property states, belongs to both spouses. So, if a husband buys the marital home with his money, his wife also owns it legally, even without her name on the title.
To see if this applies in your state, talk to a divorce attorney who cares about your interests.

Financial Dependency
If you are financially reliant on your higher earning spouse, you’ll likely be allowed by the court to stay in the marital home until you find a job and settle your finances. You don’t have to worry that you would be thrown out of your property with no means of income. In case the court’s decision regarding this legal issue did not favor you, you can still file for temporary possession of the marital home.

Domestic Violence
Usually, in divorce cases involving domestic violence, it’s evident who needs to vacate the property.
The victim gets possession of the property, and a restraining order is sought against the abusive spouse. The abuser is prohibited from entering the premises, and violating this order leads to arrest.
Domestic violence laws vary by state, so seeking advice from a family law and divorce attorney is essential if your situation involves domestic violence. This can assist you in securing legal rights to your shared property and obtaining protection from your former partner.

Who Stayed in the House During Separation
When a couple’s argument becomes heated, one spouse often leaves the house in haste. While this action is understandable, it can also lead to a major disadvantage when divorce papers are filed.
The spouse who left the house can be accused of abandonment or not providing spousal support, leaving the other partner to get legal ownership of the house.

Child Custody
The law gives priority to children’s well-being. So, in a divorce where the couple has kids and can’t agree on who stays in the house, the parent taking care of the children or the one seeking temporary custody gets to remain on the property while the divorce process goes on.
However, if the main caregiver doesn’t want to stay, the other spouse can still live in the house. It’s common for the spouse who isn’t the main caregiver to pay more child support in such situations.
Handling marital property with children involved can get tricky. It’s advisable to consult with a family law attorney.

If you leave the shared property during a divorce, you don’t automatically forfeit your ownership rights. You can still come back and stay temporarily until the court makes a decision since you maintain temporary residency rights.
But, as mentioned earlier, departing the property may result in claims of abandonment. Your spouse could use this as leverage to stake a claim to the property post-divorce.

Who pays the mortgage in a divorce depends on who’s on the loan. If both are listed (jointly owned mortgage), both must pay. But if one doesn’t, the other must pay it all. Same goes if only one spouse is on the mortgage. If they don’t pay, the other has to cover it since it’s shared property.

Who Pays for the Mortgage of the Marital Property During Divorce in SF Bay Area

If the divorcing spouses cannot decide who has to leave the house in a divorce settlement agreement but also don’t want the court to decide for them, they may consider these options. Note that some of these options will affect your taxes when getting a divorce.

House Splitting
A spacious family home can be split into two living spaces. It may sound like something from a romantic comedy, but it’s a practical solution, especially for a partner transitioning to financial independence after relying on the other.
The couple getting divorced must agree on the division of spaces. They can also create a timetable for each spouse’s use of the areas.

Bird-nesting involves the kids residing in the family home while the parents take turns living with them. For example, the mother may live with the children for one month, then vacate for another month to allow the father to reside with them.In this arrangement, the spouses inhabit separate residences (such as a family member’s home, an apartment, a condominium, etc.), only returning to the family home during their agreed-upon time. This is done to ensure stability for the children during the divorce proceedings.It’s worth noting that while this arrangement benefits the children, it can also place financial strain on the parents as they maintain two households simultaneously.

Buy Out the Other Spouse
A buyout is a common solution for many couples when they can’t decide who has to leave the house in a divorce. The spouse that is attached to the property due to countless memories will pay the other spouse, so he can get sole ownership.
Spouses who serve as the primary caregivers of the children but weren’t given the rights to the property may also choose to buy the house so the kids can be given stability.
One partner may buy out the other by paying with cash or giving up other marital assets with the same value as the home.

Both Leave and Sell the House During a Divorce
This is likely the top suggestion when one partner needs to leave the marital property. The divorcing couple agrees to sell the house to gain money.
To do this legally, they need to ask the court for permission to sell the home within a set time. Once approved, the sale can happen.
The money earned from selling the house is then split evenly between the spouses.

The fastest way to handle issues with the marital home during a divorce is to secure a cash offer. Cash buyers can finalize home sales in as little as seven days, sparing the spouses from deciding who leaves the property and reducing conflict.

It’s recommended to sell the family home to a cash buyer before initiating divorce proceedings to avoid court orders. If that’s not feasible, divorcing parties can still obtain a cash offer during or after the divorce process.

Selling to a cash buyer is straightforward. Just contact them or fill out a form on their website for an offer. They’ll then assess the property before presenting an offer.

If the offer is accepted, you’ll receive an electronic contract for review and signature. Once settled, the sale proceeds to closing, with the cash buyer covering the costs. The proceeds are then deposited into a chosen bank account.

Selling Your House During Divorce In SF Bay Area

In a divorce, it’s not always clear who needs to leave the house. The judge decides based on state laws, financial dependence, domestic violence concerns, name on the deed, and who stayed during separation.

If you want to avoid spending a lot on lawyers or getting your home appraised, it’s better to sell to a cash buyer for a quick fresh start.

At We Buy Houses in SF Bay Area, we buy houses from divorcing spouses to skip the long sale process. We offer fair cash and cover closing costs so both parties can move on with cash in hand.

To sell your house in SF Bay Area, fill out our form or call (408) 557-7554 for a free cash offer.

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The Easiest Way To Sell Your House Fast In SF Bay Area

You’re in the driver’s seat when you accept our cash offer for your house. We make the process simple, fast, and easy to follow when working with us. You have no obligation to accept our cash offer for your home when contacting us for a fair cash offer for your home. No matter the reason you want to sell your house, we want to buy your home as is. Remember that you get many benefits that include no real estate agent commissions, no cleaning, no improvements, and no stress. Our cash offer for your as-is house assures you of fast cash payment at closing with a reputable Title company. You can count on our company to give you a fair cash offer for your home! If you’re still thinking, “I need to sell my house fast”, calling us could be your best decision all day. 🙂

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Gagan Saini

Author: Saini

My name is Saini, and I founded the We Buy Houses in SF Bay Area team with years of experience in the real estate industry. I have assisted numerous sellers in selling their homes quickly, “AS-IS”, and for a fair price.

He’s been featured in multiple publications including Yahoo Finance, GoBankingRates, LegalZoom, The Mortgage Report, Apartment Therapy, US News and World Report, and SuperMoney among others.

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