When a couple separates, one of the first questions is who will stay, and who will leave the marital home. Sometimes both will stay: this is rarely a good long-term solution, although there are some situations where it makes economic sense to do this.
Ideally, the parties would come to an understanding about this, and have their divorce lawyers draft an agreement which would reflect not only who stays and who must leave, but also who is going to make the mortgage payment, and what will ultimately happen to the home. If there is no agreement, a Judge can make the decision.
Protection From Abuse
If one party has been a victim of domestic violence from the other, the Court can, as a part of the relief granted in a protection from abuse petition, award temporary possession of the marital residence. Protection From Abuse In Pennsylvania
Special Relief In Divorce
If either party files a Divorce Complaint, the Court can make an Order for Exclusive Possession of the Marital Residence. This is a matter within the Court’s discretion, and many facts can be considered. If children are involved, the question of possession of the family home can become entangled with the issue of where (and with whom) the children will be living. In other cases, the Court will look at a wide range of factors, including each party’s financial situation. Each case is different: a divorce lawyer would want to review all of the facts and circumstances before advising a client about this.
Ownership of the Home
Neither a PFA Order nor a Special Relief Order changes anything about ownership of the home. In a Divorce, ownership of the home will be decided through equitable distribution of all of the marital property. Equitable Distribution in Pennsylvania
With a residence, there are a number of alternatives:
- The home can be sold, and the money divided.
- One party can receive the home, compensating the other for their share of the equity in the home (the home’s value, less the payoff on the mortgage or other liens). Sometimes this is done by awarding other assets to the party not receiving the house. In other cases, the party receiving the home will refinance, in order to obtain the money to pay off the other spouse.
- The house can remain in joint ownership for a period of time, with an agreement to either sell or have one spouse buy out the other at a specified time. This might be done in order to give one spouse time to be able to refinance, or to allow the children to continue to live in the family home for a period of time.
The biggest mistake that some people make is not to deal with the issue during the Divorce. Sometimes this is done when the parties are doing a do it yourself divorce, or using one of the mail order divorce firms. Even if one spouse has verbally promised to sign over the house, if a Divorce Decree is obtained without a written agreement concerning the house, your ownership rights will change, and it may be much harder, and more expensive to fix the problem later on. If the home is important to you, spending a relatively small amount of money to have an attorney prepare and record a deed will protect you in the Future. In any case involving real estate, both parties will benefit from having a Divorce Attorney draft an agreement.