The most common asset amongst my clients is the marital residence. The biggest question is what will happen to the marital residence during the divorce and after that case ends. The answer is, it depends.
During the pendency of the divorce action the Court lacks authority to order the house sold. In fact, when one party files for divorce the Automatic Orders take effect (and become effective upon service of the Summons for Divorce on the other spouse), which means no party may transfer or encumber any marital assets during the pendency of the action. This includes the marital residence.
During the pendency of the divorce the Court may award one party exclusive use and occupancy. This requires one party demonstrating that allowing the other party to remain in the residence will cause irreparable harm to his or her persons or property. Often times, parties live together in the marital residence during the pendency of the action. Sometimes, one spouse (typically the more monied spouse) leaves the home to avoid conflict. However, it is important to speak to an attorney, because this may affect other issues in your case which you may not realize. For example, if you are seeking custody and leave the marital residence, you create a situation where the other spouse becomes the de facto residential parent.
At the conclusion of the case the Court will either order the house sold, or may grant exclusive use and occupancy to the residential parent until the children reach age 18. A spouse who receives exclusive use and occupancy becomes responsible for maintaining the carrying charges on the residence. Parties have the option of purchasing the other spouse's interest if the parties can settle their case. Often times parties must consider in this circumstance how to refinance the mortgage and remove the other spouse from the mortgage if he or she chooses to purchase his or her spouse's interest in the equity of the home.
To learn what your options are during your divorce action or in a final resolution of your case, contact a lawyer at our office.