Leaving the Home Does Not Mean Giving Up Your Interest

Posted on July 14, 2009 by Gail Otis

When parties decide that their marriage is over, oftentimes the question arises, 'who is going to move out'? There is a common misconception that the party who moves out of the home is giving up her/his right to that home, or to receive money from her/his interest in the home. The result may then be that both parties refuse to move out of the home, which creates an uncomfortable and sometimes hostile environment for both parties and the children. If tension increases, one party may seek an order to have the other ordered out of the home. In extreme cases, a restraining order (often called a '209A') may be sought in an effort to force one party to leave.

There are many reasons why it might be in a party's best interest to leave the home; however, in choosing to leave, a person does not give up their right to their interest in the property. Under Mass. General Laws chapter 208, section 34, marital assets are divided by the court in an equitable manner. Equitable, however, may not necessarily mean equal. What it does mean is that even though a party has left the home, temporarily or permanently, that person still has a claim to the equity in that property, meaning the net value of the home after deducting any mortgages or liens on the home.

Another reason a person may not want to leave the home is that she/he wants to remain in the home following a final divorce. Again, making the decision to temporarily move out of the home does not preclude a party from asking the court to allow that party to buy out the other party at the conclusion of the divorce, or from negotiating with the other party for such a result. It is important to remember, however, that a court will typically allow the parent with primary custody of the children to remain in the home during the divorce proceedings in order to provide the children with some stability. In addition, as part of the final judgment a Court may allow the custodial parent to remain in the home for a period of time after the divorce, thus postponing the time when the parties divide the net equity in the home.

This post written by Katie L. Lenihan, Esquire, associate attorney at Otis & Associates, P.C., and edited by Gail P. Otis, Esquire.

Divorce, real estate Tags: assets, Divorce, property Comments (0) Trackbacks (0)

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