“Who gets the house?” has long been a hot question for divorcing couples. With the housing market being what it is today and good rentals harder than ever to come by, the new question many divorcing couples are asking is, “Who gets the apartment?”
The answer may surprise you – and it can have come with significant complications.
Your primary residence, rented or not, is marital property
You and your spouse may not own the apartment, townhouse or single-family home where you live, but it’s still considered part of your marital estate or “property.” That means your rental belongs to you both.
If you and your spouse can agree on how to divide the marital property on your own, including who gets to keep the rental, that’s fine. If not, a judge will have to step in and decide what’s appropriate for the situation.
That means that they may award the lease to one party or the other – much in the same way that they can divide up other community property, like your furniture, your electronics, your vehicles and your financial accounts. If you hope to keep the rental after your divorce, it’s usually wise to stay put during the divorce, since judges tend to preserve the “status quo” at the time of any hearings.
However, one of the most important things that you have to keep in mind is that the judge can decide who gets to stay in the rental, but the judge does not have the power to alter your lease. That resides with your landlord.
Both you and your spouse are still legally obligated for the rent and care of the property until the lease either ends or your landlord agrees to change the rental agreement and take one party’s name off the lease entirely. While some landlords may be willing to do that fairly easily (once the divorce is final), others may not be so accommodating.
When you’re trying to protect your financial future and your property rights in a divorce, it definitely pays to have experienced legal guidance as you work through all the details.
