Fighting Over the Marital Home

In Separation & Divorce by Elizabeth Stephenson

Separations and divorces are a time of emotional and physical upheaval. A big part of that uncertainty is where everyone is going to live. To complicate things further, the marital home is often the most valuable asset that a couple owns. This can make the matter of the marital home a hotly contested issue when a marriage ends. There are several ways that the marital can home might be addressed when a couple separates.

Separate Property. When a couple divorces, their marital property becomes subject to an equitable division. However, their separate property is not subject to this division. This includes property that a spouse earned or acquired prior to the marriage. So if the home a couple live in is one spouse’s separate property, it will stay with that spouse.

Prenuptial Agreement/Separation Agreement. Prior to a marriage or when a couple separates, they can enter into a binding agreement that, amongst other issues, may address property division. This agreement may designate exactly who gets to live in the marital home or how the property will be divided.

Divorce from Bed and Board. A divorce from bed and board is a court ordered separation. The circumstances that lead a spouse to seek this relief are the malicious conduct of the other spouse. One scenario is where a spouse “maliciously” expels another spouse from the marital home. If the injured spouse proves the other spouse’s misconduct, the court may order that the injured spouse may live in the marital home and remove the misbehaving spouse.

Equitable Division. As previously stated, when a couple divorces in North Carolina, marital property is subject to an equitable division. So if a couple’s home was acquired during the marriage, it is subject to division and distribution as part of the divorce. There are several ways in which courts treat this division, which can include distributing the home to one spouse, while the other spouse receives other marital assets of similar value. Or, the court may order the home sold and the proceeds divided.

When Children are Involved

As part of a separation and divorce, child custody also plays a significant role in how a marital home is treated by the courts. This is because in determining the best interest of the children, one of the court’s priorities is maintaining stability and normalcy for them. This includes staying in the same home, if at all possible. This means that the parent who has custody of the children will almost always be allowed to remain in the marital home until a final property division order is entered.

New Direction Family Law

The attorneys at New Direction Family Law have spent years guiding people through family law matters of all levels of complexity. We can provide you with respectful, comprehensive legal guidance and will stand up for your rights. If you want experienced, professional representation, call us. We serve Wake, Johnston, Lee, Harnett, Cumberland, Nash, Granville, Franklin, and Durham counties. Call New Direction Family Law at (919) 719-3470 to schedule an appointment, or contact us at our website.