A woman removing her wedding ring

Who Will Have to Move Out of Our Family Home?

The Berger Firm May 26, 2022

You and your spouse are considering divorce, or you’re already in the process of getting one, and you wonder who gets to keep the residence when the process is all over.

The answer to this can vary in many ways. If you own a home or rent a residence is one major consideration. Another large consideration is whether you have children, and if so, who should get custody of them, or will you share custody?

The other and probably overriding factor regards whether the two of you can agree on a division of marital property without going to court. If you two can work on a divorce settlement, you can present that to the judge, who will likely accept it unless it is too unfair to one spouse. 

If you’re considering divorce or already in the process in or around Covington, Kentucky, contact the family law attorneys at The Berger Firm. With more than 70 years of combined experience, we can help you with the division of assets and be your strong advocate throughout the process.

We also proudly serve clients in the greater Cincinnati area or Northern Kentucky, including Newport and Florence.

Kentucky Law on Divorce

Divorce in Kentucky is no-fault, meaning both spouses merely have to declare the marriage is irretrievably broken to file for divorce. As part of the divorce filing, the petitioner must prove that the couple has lived in the state for 180 days and that you have “lived apart” for 60 days. However, living apart does not necessarily mean actual physical relocation. “Without sexual cohabitation” also qualifies.

So, if you are divorcing, neither one has to leave the residence you share together. At some point, of course, separate residences may well have to be acquired, and then we’re back to square one – who gets to remain in the current residence?

Marital vs. Separate Property

Anything acquired during the time of marriage, by either spouse or both together, is considered marital property, and this includes the purchase of a home. Kentucky is not a community property state, so the home will not necessarily be divided, value-wise, 50-50 upon divorce.

Instead, Kentucky law seeks an equitable distribution of assets based on several factors, including the needs of the children, the income potential of each spouse, and other factors. Thus, a judge may rule that either spouse might get to reside in the home, and the other spouse may have to pay spousal and or child support.

Now, if one spouse bought and owned the home on their own before marriage, the home is technically separate property, but the fact of living together can make the ownership issue “commingled,” meaning it might become full or partial marital property unless you had a prenuptial agreement. If you’re in this situation of commingled ownership, you really need the help of an attorney to straighten out everything and advise you on how to move forward.

Factors to Consider in Keeping the Home

You may be emotionally attached to where you live and don’t want to leave, but practical considerations may weigh heavily on your decision. A major factor is if you have children. Divorce is going to be hard enough on them, but forcing them to move can only add to the emotional distress they’re going to feel. You may want to keep the home for the kids’ sake even if you have to move out and allow your spouse to care for the children.

Another huge factor is money. If the two of you divorce, there is no longer going to be joint income to pay for the residence, even if it’s rented. And if you end up paying maintenance (alimony) to your spouse or make child support payments, you may not be able to afford a place on your own, at least not in the style you’re accustomed to.

Working It Out with Your Spouse

The best solution is to discuss everything with your spouse and come up with a divorce agreement that deals with all relevant issues, including who gets the home, custody, spousal and child support, parenting time rights, health insurance, and everything that affects the welfare of everyone involved. If you cannot agree between the two of you, you can always seek the help of a mediator.

When it comes to the home, you have several options. The custodial parent can stay there to take care of the children. One spouse might simply buy out the other one. You could sell or refinance the home to provide for the future of all. Or you might “bird nest,” which means that the kids are the primary residents and the two parents split time living with them.

Whoever gets to stay in the house might not thereby become the sole owner; unless they buy out the other spouse. The title would remain in both names, and the details of what happens when the children are grown need to be addressed, as well as considerations made for other circumstances when the home may need to be vacated or sold.

Legal Support You Can Trust

If you’re about to divorce in or around Covington, Kentucky, or anywhere in Northern Kentucky, rely on the family law attorneys at The Berger Firm. Our team can help you navigate the whole process, including the division of assets and the question of who gets to remain in the home.

Contact us immediately for an initial consultation. We will provide compassionate, personalized service while at the same time providing aggressive representation to protect your rights and interests.