Apart from the emotional and financial issues that confront couples who decide to separate, certain practical problems can also crop up. Spouses are often anxious and confused about what their rights and entitlements are in such situations. They may wonder whether decisions regarding the family home can be made by one spouse only, or whether it has to be a joint decision.
Usually when couples separate, one partner decides to continue living in the family home, while the other moves out. But this may not always be the case. Financial circumstances may prevent the partners from leaving the shelter of the home. Sometimes one partner would like to leave the children immediately.
An experienced family lawyer, divorce lawyer or separation lawyer can provide the right advice and assistance.
Decisions Regarding The Family Home
When a married couple owns the family home, all decisions regarding it have to be made jointly. If you decide to sell it, this can be done only with both spouses agreeing to it, unless there’s a court order that allows you to do it.
Common law couples don’t have equal shares in the family home, unless they have a cohabitation agreement. After separation, the person who holds the title to the property stays in it, while the other leaves. In case the title is in both names, the place must be sold and the proceeds shared, or one partner can buy the other out and stay on. A separation lawyer or mediator can help such couples to come to an equitable decision.
Children’s needs have to be considered when making such decisions. For instance, if they go to a school located conveniently, have grown up in the area and have family and friends there or their hobbies and interests can be continued here without interruption, these factors may help the couple to arrive at more inclusive decisions.
In case the property is mortgaged, penalties for breaking the mortgage can be very expensive. The spouse who wants to stay on has to refinance the mortgage to buy out the other partner.
Such decisions are best made based on mutual agreement. The agreement can be presented in court along with your divorce papers. If you cannot arrive at an agreement, the court will decide.
Judges base their decisions on the inconveniences caused to children and the other spouse if they’re asked to leave. The best interests of children and whether the other spouse has the means to establish a separate household are other considerations.
Safety and Other Concerns
Living in the family home is a right that both partners have equally. Hence, neither is allowed to deny access to the other, change the locks, etc. However, there may be situations where one spouse may require to change the locks due to issues with personal or children’s safety, privacy etc. It’s wise to consult an experienced separation lawyer before taking such steps.
In some cases, one spouse may wish to continue living in the family home but wants to restrict the access of the other, though he/she has the right to it. Such restrictions have to based on a legal order. These aspects have to be worked out with advice and assistance of knowledgeable, experienced family lawyers.
