Separation and divorce are distressing and chaotic prospects, but one of the most pressing first questions is often, “Who keeps the family home?”
Under Colorado 14-2-201, the court requires divorcing spouses to divide their marital property in a way that’s fair and equitable if not exactly 50/50, during a legal separation or a divorce in Denver. This rule applies to the family home, but there are several ways to manage the decision in a way that’s fair to both spouses. Call Ciancio Ciancio Brown, PC, for a free consultation today.
What If The Family Home Is a Rental Property?
The question of which spouse stays in the family home is pertinent whether the home is owned by the spouses or a rental. Separation officially begins when one spouse leaves a shared residence. The date of separation is a key aspect of dividing marital property, since anything purchased or accumulated after that date is no longer marital property, but each spouse’s separate property and not subject to division.
When spouses share a rental property, choosing who stays in the rental unit depends on whether or not both spouses’ names are on the lease. If only one spouse leased the apartment or home, they generally have the right to remain in the home, unless a judge’s temporary orders state otherwise.
If both names are on the lease, and the spouses cannot arrive at an amicable agreement for which spouse stays in the home, then they must take the dispute to a judge for temporary orders. If the spouse’s share children, it’s common for a judge to order the primary caregiver to remain in the home. This meets the court’s obligation to make all decisions in best interest of the children.
Who Keeps the Home if the Spouses Own it?
Under Colorado 14-2-201, the court requires divorcing spouses to divide their marital property in a way that’s fair and equitable if not exactly 50/50. The family home is marital property when both spouses lived there together, regardless if one or both names are on the deed. When deciding which spouse stays in the family home, there are several options that meet the court’s requirement, including the following:
- Selling the home and dividing the profit 50/50
- One spouse may buy out the other’s share of the home
- A spouse who wishes to keep the home may trade one or more assets of equal value, such as a vacation home, rental property, or retirement account
In the best case scenario, the spouses can work out a mutually acceptable settlement agreement with the help of their attorneys and mediation to avoid a contentious court process.
What If We Can’t Agree on Who Keeps the Home?
A legal separation in Colorado works much like a divorce, in that both parties must enter into a settlement agreement resolving issues such as Denver child custody, the division of assets and debts, and how to manage the family home. If they are unable to reach an agreement on one or more terms, they take the dispute to court and present their arguments for a judge to decide. Once the separation has been finalized, the orders are enforceable, just as in a divorce, but the spouses remain legally married. If they decide to proceed with a divorce, the structures are already in place for the divorce orders to dissolve the marriage.
In a time of overwhelming changes, many spouses prefer the comfort and stability of remaining in the familiar environment of their home. In other cases, one or both spouses may prefer a fresh start in someplace new. Deciding who keeps the family home and who moves out is a crucial first step in a separation, whether you plan a legal separation or a divorce.