Can a Spouse Stay in a House During a Divorce Even Though They Are Not on the Deed?

By Teo Spengler

Woman reading magazine by fireplace

Goodshoot/Goodshoot/Getty Images

A man's home may be his castle, but both spouses have the right to occupy a marital home unless and until ordered to leave by a divorce court. The house you and your spouse occupy during your marriage constitutes the marital home no matter whose name is on the deed or whose salary pays the bills.

Marital Home

If a couple occupies a dwelling during their marriage, it is the marital or family home. Neither spouse can evict the other from the marital home on his own. However, either spouse can ask the court to order the other spouse to move out if he can make an appropriate showing. If one spouse uses self-help to eject his spouse -- for example, if he changes the locks and bars the other from the home -- the police can intervene to allow the locked-out spouse to reenter. This is true no matter who holds title to the house.

Court Assistance

Once a spouse files a petition for divorce or separation, the court can make a temporary order as to who gets to stay in the home pending the final property division. Most requests for temporary orders are filed with the court as regular motions; that means the spouse making the motion must give the other spouse written notice and an opportunity to file a response. In appropriate circumstances, a court will hear a motion on an expedited basis, without notice to the other side.

Right to Occupy Marital House

Courts consider the issue of who gets to live in the family home during a divorce on a case by case basis. However, if a couple has minor children, the court often awards temporary possession to the spouse with primary care of the children. If a couple does not have children, use of the house may be awarded to the spouse whose name is on the title if he can establish the house is his separate property, purchased and paid for before the marriage or received by him as a gift or inheritance. If the house was purchased during the marriage using marital funds, the name on the title is irrelevant.

Domestic Violence

If a spouse presents evidence that she or her children were victims of domestic violence at the hands of the other spouse, the court can order the accused spouse to move out of the family home. The judge can also issue a temporary restraining order forbidding the spouse from approaching family members. Sometimes courts will hear emergency requests very quickly, without the normal timing and notice requirements. A full, noticed hearing is scheduled to make a longer-term decision.