Who Gets to Stay in the Marital Home During Divorce in California?

by | May 30, 2024 | Complex Property Division

When a couple decides to divorce, one of the first outward signs of their intention to split can be when one party leaves the marital home to live elsewhere. Although couples are not required to live separately to divorce in California, in most cases, living with their soon-to-be ex is too emotionally uncomfortable to consider. What makes matters more complicated, however, is that either member of the couple may be hesitant to leave the house, fearing that letting their spouse stay in the home during a divorce may have unforeseen legal consequences for their property or other rights. 

Does the law dictate who has the right to stay while the divorce is pending? And does the decision of who stays in the marital home have implications for their divorce settlement or what happens after the divorce is finalized? While a spouse choosing to leave the marital home does not mean they forfeit their property rights in the home (nor does it absolve them of their responsibility for helping to pay a mortgage), it can influence other aspects of divorce if it is not carefully considered. Before someone decides to move out, it is best to consult with an experienced family law attorney to ensure that they are informed about the possible effects of the move.


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Can One Spouse Force the Other to Move Out?

As a practical matter, many couples who decide to split voluntarily choose who should move out of the marital home during a divorce. Perhaps the couple has young children, and they mutually decide that the parent who is the primary caregiver should stay in the house to care for the kids to minimize disruption in the short term. In these cases, the couple should come to a written agreement regarding child custody and visitation before the move occurs. Otherwise, the court may interpret the departure as signaling disinterest in having a greater share of parenting time and award primary physical custody to the parent who stayed.

Because California is a community property state, if the couple bought the house while they were married, they both have an ownership stake in it, and neither can compel the other to leave. Keep in mind that this is true even if only one spouse was working and paying the mortgage or other home expenses during the marriage because their income during that period is considered marital property belonging equally to each spouse.  

What happens when the home was owned by one spouse before the marriage? If the house is truly considered separate property under the law, then the spouse who owns it has the right to force the other party to leave. A home that was considered separate property at the start of the marriage may not have remained that way, however, depending on what actions were taken during the marriage. For example, the house may no longer be considered separate property (in whole or in part) if the spouse’s name was added to the title or if marital assets were used to pay down the principal on the mortgage or make improvements to the home. Unless the party who originally owned the house has taken steps to ensure that only separate funds were used to make payments or improvements (and kept meticulous records demonstrating that), or the couple has a prenuptial agreement stipulating that the home is to remain separate property in the event of a divorce, it can be hard to prove that the home is still wholly separate property.

If the couple cannot come to an agreement on their own, the court is empowered under Family Code § 6324 to give one spouse temporary use and possession of the house.

Does Moving Out Affect Who Will Get the Home?

who gets marital home in divorce

Which party ends up staying in the marital home during the divorce process does not necessarily predict who will end up getting the house in the divorce settlement if it is not ultimately sold and the proceeds split. Whether the parties come to a mutual agreement about who should occupy the house in the short term or the matter is decided by court order, leaving does not affect their property rights. Simply moving out does not, on its own, constitute abandonment either if the party who has left continues to honor their financial obligations and maintain appropriate contact with their spouse and/or children as the divorce is proceeding.

Some may fear that moving out will put them at a disadvantage in the division of marital property, making it less likely that they would get the house in the divorce settlement if they give up physical possession even temporarily. Leaving will not change the underlying property rights; whether the home was purchased entirely with marital assets or some portion of the equity and appreciation is considered separate property. Notably, leaving also does not mean that the spouse who stays in the house is solely responsible for its expenses while the divorce is proceeding. Both parties are still responsible for any shared debts and must come to some arrangement to be sure they are paid.

Does Staying Confer a Financial Advantage?

Another reason a spouse might hesitate to leave the marital home is the fear that letting their spouse stay will be a sneaky way for them to claim more than their fair share of marital property. In California, though, there are mechanisms to help ensure that asset division remains 50-50 even when one party is getting exclusive use of a community asset such as a family home, or they are paying a community debt such as a shared mortgage out of post-separation (and therefore separate) funds, during the separation and before the divorce is finalized.

For example, if one spouse pays the entire mortgage payment out of post-separation earnings, they would be entitled to a reimbursement of their spouse’s share of the expense. This type of reimbursement is known as an Epstein credit, after In re Marriage of Epstein, decided by the California Supreme Court in 1979. On the flip side, the spouse who stays in the house may owe the community estate fair market value rent for using shared property for their personal use. This type of payment is called a Watts Charge, named for the 1985 case In re Marriage of Watts. Depending on the exact circumstances, Epstein Credits and Watts Charges may partially or entirely cancel each other out, and parties intending to seek them must provide prior written notice and evidence supporting their claims. A knowledgeable family law attorney can help ensure that proper procedures are followed and information is presented to protect their client’s financial interests.

Your Family Law Resource in Silicon Valley

If you are contemplating moving out of the family home and filing for divorce, consulting an attorney can be key for clarifying your rights and preserving your long-term interests. The family law attorneys at Hoover Krepelka LLP are experienced in handling all aspects of divorce, including property division, spousal and child support, and child custody. We can provide the advice you need to make the right decisions tailored to your specific circumstances. To schedule a consultation, fill out the form below today.


*The above is not meant to be legal advice, and every case is different. Feel free to reach out to us at Hoover Krepelka, LLP, if you have any questions. Information contained in this content and website should not be relied on as legal advice. You should consult an attorney for advice on your specific situation. 

Visiting this site or relying on information gleaned from the site does not create an attorney-client relationship. The content on this website is the property of Hoover Krepelka, LLP and may not be used without the written consent thereof.


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