are you allowed to stay in your home during divorce

She Kicked Me Out, Was That Legal?

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Getting kicked out during a breakup is a common occurrence. It also happens all the time when it comes to divorce and seems cut and dry in most cases. But it isn’t always. Over the course of a marriage, ownership of a home often becomes murky. Who has rights to a shared home is a big question. And if your ex kicks you, is that legal?

As in most cases with divorce and family law, the answer isn’t simple. It depends on many factors, including prior ownership, the names on the deed, if community funds have been used to pay the mortgage and make improvements, and other factors. Told you it gets complicated.

Our founding partner, Rick Jones, regularly stops by the Danny and Sarah Morning Show to answer family law questions from listeners. One recent caller had been kicked out by his wife and wanted to know if that was legal or if he has any recourse.

Caller Question

My wife and I have been married for about 12 years, and when I first met her we lived in a house that she legally owned. It burned to the ground, so with the insurance money, her and I were purchasing a house that we currently live in.

“My wife’s kinda gone down a dark road and blaming me, pretty much kicked me out of my house saying, this is ‘her house,’ this is ‘her inheritance,’ just going cuckoo.

“So my question is: is it legal what she did? To kick me out of a house that I’m also part owner of which my name is on, because she threatened if I come back she’s going to get the police involved and the whole nine yards.

“Luckily we have no kids between the two of us which is nice, so if that is the case, what are my legal grounds as far as the house goes? Am I able to say, ‘Well fine then you owe me half the equity, buy me out of the house’?

“Do I need to tell her to sell the house because that’s primarily where her and my grandson live? I’m just kinda like, what do I do here’?”

Rick’s Answer:

I do hear a couple questions in there just like you said right up front. First one is: ‘Can she do that?’  This goes back to what we’ve talked about before, which is ‘self-help.’ She said, “get out,” and you did?

Caller:Let’s put it this way, I was threatened if I didn’t get out she was going to have some people come over to happily help her get me out.

Danny:So the question was, she said to leave and you did, I take it that, ‘yeah,’ under whatever circumstances, you did.

Rick: “And that being said, it is sort of a tennis match and I get where he’s coming from too because the next thing she may have done if he said, ‘Heck with that I’m staying right here,’ she may make a call to the police and say, ‘Oh now he’s threatened me.’ So there’s several ways to address that issue, but I just want to talk to that first point.

“Your second point has to do with characterization of the property. 

The fact that the home was owned apparently outright by her or at least all the equity in the prior home was hers as separate property then the insurance money is going to be considered separate property as well.

“Now, after time though, and as many things as you do with this money, it’s possible it gets a little bit convoluted. It’s up to her to try and trace it back, to demonstrate to the court that it started as her separate, and one house turned into separate in another house. 

“Now you’ve been paying the mortgage on this new home I assume as well, so the key really is to do the opposite of that.  Trace it to community funds based on your guys’ income during the pendency of your marriage.

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