Can I stay in the family home or house during the divorce?

Can I live in the family house during the divorce?

One question we are frequently asked is who has the right to live in the house.  A better question might be, “Can I afford to stay in the house?”  Many people don’t realize the financial strain a divorce puts on a couple.  So many of us now a days live from paycheck-to-paycheck.  Once a divorce proceeding starts, one party will have to move out of the house and set up new living arrangements, whether with friends, family, or in a separate apartment.  This means that instead of the couple paying for one household, they are now paying for two.  If a couple is living paycheck-to-paycheck, they often can’t afford to do this.  So one important consideration right off the bat is to make sure that you can afford to stay in the house.  This is not an easy decision, but it is better to face this decision before you decide to file for a divorce, rather than wait until you get into the divorce and realize that you cannot sell your house.

If you decide that you do want to stay in the house, the court has a number of options in deciding who gets to stay.  If you are a mother and have small children, the court is likely to allow you to stay in the house and require your husband to get a separate home.
If you do not have children, the court will more often than not allow the wife to stay in the house, but it depends upon a number of factors.  One factor would be who makes the most money and who can best afford to pay for a separate apartment.

All of this assumes that you own the house jointly.  Basically, Louisiana is a community property state.  This means that whatever you buy during the marriage, both the husband and the wife own equally.  It is important to understand that it does not matter “whose name” an asset is in.  If during your marriage your husband puts $2,000.00 into an account in “his name” the wife still owns half of the account.  So, if you bought the house during your marriage, chances are it is a joint property and each spouse owns half.  This can be complicated, however, if there is a prenuptial agreement.  This can also be complicated if one of the spouses used separate property (for example, an inheritance or property which the spouse owned before the marriage) to buy the house.
Please keep in mind that the judges in our jurisdictions are human beings.  They understand the difficulties of going through a divorce and they will make their best efforts to try to ease the process as much as possible.  They are going to try to do the right thing.