If the 80’s Michael Douglas/Kathleen Turner movie “War of the Roses” taught us anything, it’s that it can be quite difficult for divorcing couples to reside together in the same residence during the divorce process. Unfortunately, that is often the result when New Jersey law is applied to divorcing couples.

The basic law is that both parties have a right to remain in the former marital residence. It may shock non divorce attorneys to learn that this is often the case, even when only one of the parties owns the former marital residence.

More often than not, the parties will come to an Agreement so they do not have to live together during the divorce; a period of time that often takes longer than a year to complete.

The parties may agree for one party to have possession of the house while the other seeks alternative living arrangements. Even more common still is an Agreement to sell a house and split the profit, even before the divorce is finalized. Barring an agreement, however, the parties are often left to reside together. As with any rule, however, there are exceptions. Two of the biggest exceptions include:

  • The party found responsible for domestic violence will be required by law to leave the premises (even if theirs is the only name on the title).
  • A party may be required to vacate the former marital residence if it is in the best interests of the parties’ children.

It is rare for a Court to otherwise Order a party out of the former marital residence.  It is also rare for the Court to Order the pendente lite (prior to divorce) sale of the former marital residence, even if the parties’ are taking on large sums of debt to keep the property afloat.  The Randazzo v. Randazzo case, however, does provide for the pendente lite sale of the former marital residence when certain conditions are met.

Conclusion

Who gets possession of the house during a divorce?  In New Jersey, for better or worse, oftentimes the answer is both parties. This can, however, often add an extra layer of stress to the divorce proceedings.  For that reason, if the parties can afford separate residences that is often preferred.

Your New Jersey Divorce Lawyer:

If you’re considering a New Jersey divorce or Family Law action contact me to discuss your options.  You can schedule an initial consultation by calling my office at 908-237-3096 or by scheduling your own divorce consultation online by clicking here.