Use of Martial Home During My Austin, Texas divorce case – Should I stay or should I go?

Written By Chris Merritt

Who gets to stay in the house after the divorce is filed?  What about other property during a divorce – what can and can’t I use?

Often when preparing for the filing of the divorce petition in Austin, Texas, one question that we are asked is: can I stay in the house? During temporary orders and the divorce process it is common that only one person lives in the marital residence. Generally, barring an agreement of the parties, Courts will typically order that one party is to have the exclusive use and possession of the marital residence while the other party moves out. However, both parties are entitled to make the request to stay in the house during the divorce, even if the house is in the name of only one of the parties.

If desiring to remain in the home, you want to demonstrate why you it should be you instead of your spouse who stays. There are many things that courts can take into consideration when determining who will get to stay in the house. For example, is the house is the separate property of one party, meaning did that party own the house before the marriage? The Court will often consider which of the parties can afford the house and related payments, although the Court may order temporary spousal support if needed during the divorce. Also, does a party work out of the house and if so, what would be the impact of moving the work out of the residence be on their livelihood. Finally, but potentially most important, is that the Court will often look to keep any children of the marriage in the house. While this is not always the case Courts may favor the status quo, that is keeping things as much the same as possible including the kids sleeping in the same beds that they have been sleeping in and in the same house that they have been living in. Because of this, the party that can show that they are the primary care giver has a good argument to request exclusive use of the house. On the flip side, getting use of the house during temporary orders does not mean that party will necessarily be given primary custody because courts may grant the parent who does not stay in the house primary possession of the children.

One thing that is important to remember is that while the Court may award one party exclusive use of the house during the divorce, it does not mean that the same party will get the house on final trial or when the divorce is over. There are simply temporary orders and subject to change.

When the parties do separate it is common that the parties agree to dividing up some of the personal belongings from the residence; things such as a bed, couch, dishes etc. While this dividing of property is not the final division and a party can always request something else or something back if it has been removed, it is usually a good idea to try to get the personal property that you think you will want at part of the final divorce. Especially during this time, we always suggest to get your separate property if you can. Your separate property is those things you brought into the marriage or received during the marriage by either gift or inheritance.