It’s My House…You Should Get Out

Stacy Rocheleau, Esq.
Posted: 25 June, 2024

It’s My House…You Should Get Out

It is common to have a few arguments over property during a divorce. None will be bigger, literally, than the home. Who gets to live in the house while the divorce is pending and who gets to keep the house are typically the biggest and most emotionally charged arguments. It can also be the most complicated for your divorce attorneys to help sort out.

Divorcing, Can I Kick Him Out and Change the Locks?

Filing for divorce while still living under the same roof is common.  For some staying in the home is better for the children. For others, the decision to stay together after the divorce is filed is based on economics. But divorces can takes months to resolve, so if you are no longer happy rooming with your soon to be ex-spouse, while it may be a good idea to separate, don’t get any ideas about changing the locks while they are at work. This is a flawed strategy. You cannot evict your spouse from a home that they have rights to, even if you believe that sole ownership belongs to you.

Often, spouses find themselves locked in a battle of “this is my house…you need to get out!” Many divorce lawyers will advise you against this line of thinking because it is harmful. It’s also obliterates the chance of an uncontested divorce.

Does Title Matter?

The title and mortgage are in your name, you can kick your spouse out, right? Maybe your partner signed a quit claim deed; the house is yours! Sorry, but for both of these examples, you would be wrong. When dividing assets, the issue of who holds the title is a relevant one. This is commonly handled during the final hearing. For spouses who are determining temporary possession, titling and quit claim deeds are irrelevant.

Homes owned prior to the marriage could still be subject to community property rules. Your spouse would still have a legal right to reside in the marital home during the divorce. You do not have the authority to evict your spouse simply because your name is on the title.

When Does Titling Matter?

Who owns the title can make a difference on the courts’ final decision. How does the court decide if the property is separate property or community property? If the home is separate property, the court should award the home to you.

If the home is community property, you must both decide who will keep the property. The court cannot require you to live in the home together, so decide quickly. Make sure to work out a child custody schedule as well, because temporary schedules can become permanent. The court will place a dollar value on the home and the spouse keeping the property will need to reimburse half of this value to the other spouse.

There are situations where you live together, but not married.  Cohabitation is a common fact the divorce courts face.  When you are unmarried cohabitants the court may split the equity in the house even if your name is not on the deed.  In Nevada this is called community property by analogy.

What Makes A House Separate Property?

The simplest example of separate property would be a house:

  1. Purchased before marriage,
  2. Titled in your name, and
  3. Clear of any mortgage payments.

The simplest example of community property would be a house:

  1. Purchased after the marriage began,
  2. With both names on the title and/or
  3. Payments to the mortgage that originate from a joint or community bank account.

However, divorce is rarely simple. The court is primarily concerned with the monetary aspects. Did community money in any capacity fund or support the property? For example, you purchased the home after the marriage without a mortgage and kept the title in your name. Often, divorce attorneys will attempt to persuade the court to ignore the title and review if any community funds were used in the down payment or mortgage payments. If you used community money, then there is some community interest and your spouse may have a legal stake in the property.

A common scenario that occurs: You purchased the home together, but the mortgage company required your partner to sign a quit claim deed for credit purposes. The title and mortgage are both in your name. Would the court consider this separate property?

  • No. Because both spouses worked, community funds helped finance the mortgage. This house is considered community property.
  • No. Even if one partner did not work, the house could be considered community property because your spouse may have a community interest in your income, which was used to pay the mortgage.   Tricky, huh? A skilled divorce lawyer working in your corner can be instrumental to working out this problematic solution.

What happens when the house was purchased prior to the marriage, the mortgage was still being paid monthly, and only one spouse had a job? Should the home be separate property? Sort of. There is a portion of the home that is separate, and there is a portion that is community.   This issue was settled in Malmquist v. Malmquist. This was decided as a solution to the courts’ need to calculate the amount of community and separate property. Visit one of our Las Vegas divorce lawyers who can walk you through this formula and help you determine how to divide your assets and figure out child support and spousal support.

What Happens If Your Mortgage is Underwater?

A problem that has become more common since the housing bubble crisis of the late 2000’s is what to do when you want to get a divorce, but your mortgage is underwater. Who becomes responsible for this debt? There are several options available. Below, one of our highly skilled divorce attorneys explains the problems that some couples may face when their assets are underwater.

One option would be for the spouses to adjust their assets to make up for the mortgage debt. For instance, a couple has assets of $300,000, which includes a house worth $150,000. In an ideal situation, one spouse would take the house and the other would take the $150,000 in assets to achieve a 50-50 split.

The situation becomes complicated if the mortgage is underwater. The house could be worth $100,000, but the mortgage is for $150,000. One spouse could request an additional $50,000 in assets to overcome the mortgage debt imbalance. While this option may be convenient, it does introduce potential problems. Should the spouse granted the house wish to stay in the house, they will likely regain the lost property value over time. When the value of the home recovers, this spouse will come out ahead in terms of asset distribution. For this reason, some divorce attorneys will suggest ignoring the negative equity of the mortgage should one spouse wish to stay instead of selling.

Motion For Exclusive Possession

If you want exclusive possession of the marital home during the pendency of the separation or divorce proceedings you must obtain a court order allowing such.  A Las Vegas divorce lawyer will prepare a Motion for Exclusive Possession of the Marital Residence for the court’s determination.  Attempting to covet the family home prior to this motion being granted could be met with severe sanctions from the family court judge.

The Motion will inform the court of all the reasons the moving party should be allowed to stay in the home, change the locks, and prevent the other party from returning to the home. If a spouse packs his or her bags, takes their personal items and moves out of the marital home, the judge will almost surely grant you your motion.

Another factor a court considers is whether or not children are living in the home with one of the parents.  Because it provides stability for the children, courts lean towards giving temporary possession of the marital home to the parent who is caring for the children in the home. The court also considers which party is in the best financial condition to move to a different residence, and which party is going to end up with the house at the end of the case.

If the party requesting exclusive possession of the marital home has been the victim of domestic abuse, it is possible that in addition to granting the motion, the court may issue a restraining order against the alleged abuser and prevent them from returning to or visiting the marital residence.

The motion may be denied if the spouse who is being asked to move can show extraordinary circumstances as to why the move would create a hardship.  If the spouse has no place to go and cannot afford to pay rent somewhere else, it is possible that the motion will not be granted, and the divorcing spouses may need to maintain the mutual residence during the duration of the divorce.  This is sometimes an untenable position. A Las Vegas divorce lawyer can discuss some alternative solutions to this difficult problem.

It is common to combine a Motion for Exclusive Possession with other motions seeking temporary orders until the final divorce is granted. For example, temporary orders regarding child custody, child support and spousal support may also be necessary.

Think it’s your house?  Contact a Las Vegas divorce attorney.  Call (702) 914-0400 to talk with our staff or to schedule a consultation.

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Stacy Rocheleau, Esq.