My House, Get Out
You are going to have a few arguments over property. 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 after the divorce are typically the first and biggest arguments.
The answer of who will live in the house during the divorce and who keeps the house are not always the same. If you are unable to live together during the divorce, and most spouses cannot, the judge will make a temporary order, giving one spouse “exclusive possession” of the home. The temporary order may be different than the final order. The temporary order may be about preserving the peace or stability for the children. The final order is more about actual ownership or who is more likely to keep up the payments.
Until a judge makes a temporary order, neither spouse has exclusive possession of the home. There may be an attitude of “My House, Get Out”. The strategy of changing the locks while your spouse is away for the weekend is flawed. By law, you cannot evict your spouse from the home.
If your spouse leaves voluntarily then you may have grounds to change the locks and claim temporary possession. If you are granted a Temporary Protective Order (TPO) you would be granted temporary possession of the home. TPO’s are serious business, make sure to contact one of our Las Vegas divorce attorneys to learn more about their proper use.
Does Title Matter?
You may believe since the title and mortgage are in your name you can kick her out. Your wife signed a quit claim deed, so this is your home! You will be wrong. The titling is a relevant issue on dividing the asset. Something done at the final hearing. For temporary possession, titling and quit claim deeds are irrelevant.
It would not even matter if you owned the home before the marriage. Your spouse still has a legal right to reside in the marital home during the divorce. Having your name on the title does not give you authority to evict your spouse.
Dividing a Home Underwater
When Does Titling Matter?
Titling could make a difference on the courts’ final decision. The court first looks to decide if the property is separate property or community property. If the home is separate the court will award the home to you. If the house is community property, the court cannot force you to live together, and must decide who will keep the home. They will place a dollar value on the home. The spouse keeping the home will need to reimburse half of this value to the other spouse.
What makes a home separate property? A house purchased before marriage, titled in your name, with no mortgage would be the simplest example of separate property. A house purchased after the marriage with both names on the title and mortgage would be the simplest example of community property. However, divorce is rarely simple.
The court mostly looks for the money. Did community money in any way fund or support the property? For example, you purchased the home after the marriage without a mortgage and kept title in your name. The court will ignore the title and look if community funds were used in the down payment or mortgage payments. If community money was used then there is some community interest.
The typical scenario we run into is, you purchased the home together, but the mortgage company required her to sign a quit claim deed for credit purposes. The title and mortgage are in your name. Separate property, right? No, because you both worked, helping fund the mortgage. This house is community property. Even if she didn’t work the house is community property because she has a community interest in your income, which was used to pay the mortgage. Tricky, huh.
The trickier scenario is when you purchased the home prior to the marriage, have a mortgage, and you are the only one earning an income. Should the home be separate property? Sort of. There is a portion of the home which is separate and there is a portion which is community. This issue was settled in Malmquist v. Malmquist.
The courts needed to create a formula to calculate the amount of community property. You know the courts are working hard when they create a formula. It’s called the Malmquist formula and calculates the amount of separate and community value. One of our Las Vegas divorce lawyers can walk you through this formula.