Laurie Schmitt Family Law

W. Michigan family law specializing in Collaborative Divorce

616.608.4634

Marital Home

Can You Kick Your Spouse Out Of The House During Your Divorce?

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You want to file for a divorce. And the thought of living with your spouse while going through the divorce process is frightening. You want to have peace in your home while you await your final hearing, and wonder if you can make your spouse move out of the marital home. The answer to your question is “maybe”. 

If you seek to have your spouse removed from the marital home, you would file a motion for exclusive use and possession of the marital home, schedule a hearing, and be heard by the judge assigned to your divorce case. 

WHAT IS EXCLUSIVE USE AND POSSESSION OF THE MARITAL HOME

Exclusive use and possession of the marital home is when one spouse is granted the right to stay and live the marital home while the divorce is pending, requiring the other spouse to move out involuntarily. 

WHEN MUST MY SPOUSE MOVE OUT

Kick Spouse Out of House

If you are granted exclusive use and possession of the marital home, your spouse will be required to move out immediately or by a specific date determined by the judge. Your spouse will then be prohibited from returning to the marital home for any reason.

HOW DO JUDGES MAKE THEIR DECISION

Judges will look at many factors when ruling on request for exclusive use and possession of the marital home. They look to see if there is domestic violence – if your spouse is assaulting or threatening you or your children. They are looking for behavior of your spouse that reaches a level the judge would believe to be harmful to you or your children.

WHEN YOU WILL NOT BE GRANTED EXCLUSIVE USE AND POSSESSION OF THE MARITAL HOME

You will not prevail on a motion for exclusive use and possession of the marital home simply because it is “uncomfortable” to live with your spouse. Your justification must reach a level that the judge believes there is domestic violence taking place in the home.

IF I AM GRANTED EXCLUSIVE USE AND POSSESSION OF THE MARITAL HOME CAN I CHANGE THE LOCKS

If you are granted exclusive use and possession of the marital home, you have the right to change the locks – and should do so immediately to prevent your spouse from returning to the marital home when you are not present.

WHO PAYS THE MORTGAGE OR RENT

If you are granted exclusive use and possession of the marital home, you may be required to be responsible for the expenses of the marital home (mortgage/rent, utilities, taxes, and insurance). 

The judge will look at the financial situation of you and your spouse and determine who will have the financial responsibilities of payment of the expenses of the marital home through the pendency of the divorce. Be aware that there is a risk associated with a request for exclusive use and possession of the marital home, as these expenses can be assessed to you, your spouse, or a percentage allocated to both of you.  

GRAND RAPIDS COLLABORATIVE DIVORCE ATTORNEY SERVING KENT, OTTAWA, AND ALLEGAN COUNTY.

 If you are contemplating or in the process of a divorce or separation, contact the Michigan divorce attorney, Schmitt Law, PLLC. Our office understands that family law matters often involve complex relationships and dynamics that can enhance decision-making stress. We provide clients with the security to approach these challenges with confidence. Our dedicated attorney will provide clients with individualized attention and strategic case preparation to address all parts of their cases. We invite you to contact Schmitt Law, PLLC today by completing our online contact form, or calling us at (616) 608-4634 to schedule a consultation.

The Marital Home and Divorce – Common Questions

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You and your spouse own a home, and you’ve decided to file for divorce. You have concerns about the marital home, the equity, and what you may be entitled to receive in the divorce.

The following are the most common questions asked of Schmitt Law, PLLC during an initial interview:

WHAT IF THE HOME WAS PURCHASED BEFORE THE MARRIAGE?

The answer to this question is how close was the home purchased before the marriage. If it were purchased close to the marriage, it is most likely marital property. And, if at the time of the marriage there was little to no equity, then your spouse could not claim the equity to be separate property (because there was no equity at the time of the marriage). 

Marital Home and Divorce

If one spouse purchased the home well before the marriage, and can show the court there was equity in the home at the time of the marriage, then they may claim that portion of the equity as separate property. What this means is that they can ask the court for a credit for the portion of the equity that existed at the time of the marriage. But the burden is on your spouse to show (1) the value of the house at the time of the marriage, and (2) that there was indeed equity at the time of the marriage.

WHAT HAPPENS IF MY SPOUSE’S NAME IS THE ONLY ONE LISTED ON THE DEED TO THE MARITAL HOME?

How a property is deeded is not dispositive of ownership. There are various reasons why one spouse’s name may not be on the deed.  Simply because only one spouse is listed on the deed does not mean the home is not marital property. The quick answer is if the home was purchased during the marriage, it will be subject to division in the divorce by the family court.

WHO GETS CREDIT FOR THE DOWN PAYMENT ON THE MARITAL HOME?

If the down payment came from marital funds, neither party is entitled to an offset for the down payment, as the down payment was made with joint funds. If the down payment came from one spouse, and is a significant amount of money, that spouse may claim it as separate property and request a credit for that amount.  However, the longer you and your spouse have been married and owned your home, the less likely any offsets would be granted by the court for a down payment made exclusively by your spouse.

WHAT IF I PAID DOWN THE BALANCE ON THE MORTGAGE OR PAID FOR IMPROVEMENTS TO THE MARITAL HOME WITH INHERITED FUNDS?

If you paid down the balance of the mortgage or paid for improvements to the home with inherited funds, one argument is that you “gifted” that money to the marriage. If this contribution was large, and close to the time of filing of the divorce, it may be possible to convince a judge that you should be awarded an offset for the contribution amount. However, the more common rule is that once inherited funds are co-mingled into marital funds, they become marital funds that are not divisible in a divorce action.

WHAT HAPPENS IF I PUT A DOWN PAYMENT ON THE MARITAL HOME FROM PROCEEDS FROM SALE OF A HOME OWNED PRIOR TO MARRIAGE?

Once again, the answer to this question is largely dependent on the length of the marriage. If it is a short-term marriage, you would have a separate property argument. If it is a long-term marriage, it is less likely that any offset would be given.

ARE YOU CONCERNED THAT YOU WILL BE LEFT OUT IN THE COLD?

GRAND RAPIDS COLLABORATIVE DIVORCE ATTORNEY SERVING KENT, OTTAWA, AND ALLEGAN COUNTY.

Do you have questions about your marital assets? Determining what is marital and non-marital can be one of the most complex issues in your divorce. You have the right to expect a fair and equitable property division in your divorce. Schmitt Law, PLLC has the knowledge and skill to resolve financial matters using mediation and the collaborative approach, saving you time, money, and stress. To discuss your circumstances and legal options, contact Schmitt Law, PLLC online or call (616) 608-4634 to schedule a consultation. 

Note, the contents provided above are for general information purposes only, and should not be construed as legal advice on any specific facts or circumstances. As family law is complex, answers to your specific and unique situation may vary greatly from the general answers provided in this blog.