During a marriage the parties enjoy a status that is similar to a partnership. That is, all assets and liabilities of the partnership (marriage) are jointly owned in equal proportions by the partners, including the marital home. Partners in a business venture may define their partnerships in unequal proportions (for example, one partner may have a 20% interest in the partnership while another may have 80%), but in a marriage the law recognizes both spouses have a 100% undivided interest in the marital assets and liabilities. There can be circumstances where there is an unequal partnership, for example, when there is a prenuptial agreement that sets out the actual proportions of ownership. However, in the typical marriage the parties are equal partners.
So, what does that mean in the context of the ability of each spouse to live in the marital home? Strictly from a property standpoint, both spouses have an equal right to live in the marital home. But often it is not desirable to continue living with a spouse when a divorce is imminent. So, how does the law view use and possession of the marital home during the divorce?
Either spouse is to ask the court for exclusive use and possession of the marital home, or in other words to force the other spouse to find alternative housing. When this happens, the financial ability of the spouses to have alternative housing is at issue, and when money is tight it is not typical for the court to order one of the spouses to move out over their objection. A spouse who is ordered to vacate the home must have the financial ability to do so, and often that means providing that spouse with some funds to be able to move out. When this is not possible, a very difficult situation is created. Unless there is or has been violence, a spouse’s financial inability to move out is often seen by the courts as a joint problem to solve, which may require the other spouse to provide some funds or other assistance.
This can be a very sticky issue to solve. Both spouses should put their heads together to solve it, because if they do not the court will often force their hands, or require that they live in an uneasy co-existence.