When a couple reaches the point where divorce or separation is inevitable, feelings of resentment and anger can boil over. In some instances one spouse may try to kick out or evict the other spouse from the marital home, going so far as to pack their things and show them the door. In cases where one spouse attempts to make the other leave, many wonder if their spouse can actually force them out of the marital home. What if the mortgage or deed is only in the evicting spouse’s name?
It is not uncommon for couple to continue to live at the same residence even though they are separated while seeking a divorce. Even though the situation may not be ideal, some divorcing couples stay put for financial reasons, or for the kids, or because they wonder what will happen to their rights to the property if they leave. However, often times it is difficult to continue living under the same roof and one spouse may demand that the other leave. It is important to know your rights under the law if you are forced out of your home especially if you do not own the property.
Typically, even if a spouse’s name is not on a mortgage or the deed and title documents, they cannot be evicted form the marital home during the couple’s separation and eventual divorce. However, there are some possible exceptions:
- If there is evidence of domestic violence implicating a spouse in repeated incidences of abuse of the other spouse or the children, a spouse may ask the court to order the offending spouse to leave the home while the couple is separated or during the divorce process.
- Another possible avenue for one spouse to evict the other is to show the court that the property is owned by only one spouse, but again, the marital home is typically considered as belonging to both spouses regardless of who initially owned it. That said, it is not impossible, and certainly the owner spouse can present documentation that the house was owned prior to the marriage and that the house was strictly maintained and paid for using non marital funds to convince the court to order the other spouse to leave.
What Happens to the Marital Home in a Divorce?
Even if both spouses are permitted to stay in the home while separated, the home may be determined to be separate property in the divorce settlement where a non-owner spouse would have no claim to the property. However, more commonly, couples do co-mingle funds to maintain or make payments on their home when married, so even if the home is only in one spouse’s name, the house will be subject to the division of marital property to some extent.
The owner spouse may pay the spouse their share of the interest in the home in cash or trade other assets if they intend to keep the home. If there are no other marital assets to trade or the owner spouse does not have the funds to pay their spouse for their share of the interest in the home, the owner can sell the home and share the proceeds or make other arrangements to with their spouse to fulfill the obligation. Working with an experienced property division lawyer can help you reach a favorable settlement agreement.
Does It Matter That I Live in a Community Property State?
Wisconsin is a community property state which means that property acquired during the marriage is generally considered to belong to both spouses equally. Only a marital home that qualifies as separate property can it be excluded as marital property. Again, this means the property was acquired prior to the marriage and fully maintained using separate funds or in cases where the property was inherited or gifted to only one spouse and maintained using non marital funds.
Contact a Wisconsin Property Division Lawyer for Help
If you have questions regarding who can stay in the marital home during a separation or divorce or have questions regarding Wisconsin property division, contact the Probst Law Office PC for more information today.