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Who has to move when you decide to divorce?

On Behalf of | Sep 30, 2021 | property division

You and your spouse have made the decision to separate and begin the divorce process. One of the first big questions is which one of you is going to move out of your home. You realize that you’ll probably end up selling the home in the divorce, but for now, neither of you is prepared to pack up and leave. 

If you’ve lived there for years and you’ve put a lot of work into it, that can be a difficult decision. It can be especially tough to decide if you don’t have children, or your children are grown. 

Who legally owns the home?

If neither of you wants to leave, the next step is to look at it from a legal perspective. Absent a restraining order, if you’re both on the title, you both have a legal right to be there. 

If one of you owned the home before you married and the other spouse was never added to the title, the spouse who’s not on the title could have a difficult time making a legal case that they have the right to stay, especially since North Carolina is not a community property state, unless they can show that they made significant or at least equal contributions to the mortgage payments or to paying for renovations and repairs.

Should you continue to cohabitate?

When both spouses have a legal right to the home, they may opt to continue living together –- especially if they have children. However, unless you’ve got enough room to avoid running into each other constantly, that’s likely only going to make things worse. (Rent War of the Roses if you want to see a worst-case scenario.) If you have young children, the arrangement may be confusing for them.

If you have children, but you can’t continue living under one roof, the children’s primary caregiver will probably be the one allowed to stay in the home with the kids until the matter is settled in court.

If you and your spouse can’t agree on which one will move out without the intervention of the court, that doesn’t bode well for the rest of your divorce. Before it reaches that point, it’s wise to seek legal guidance so that you fully understand your options and the ramifications of each choice you have.