If you are planning on getting divorced, and you currently live with your spouse in a home that you both own, you may be wondering if you can move out of the house before getting divorced without losing your right to the house or a share of its equity. Many people worry that if they move out of the house before the divorce, the court will treat it as if you “abandoned” the house and then automatically give the house to the spouse who continues to reside there.
Massachusetts is an “Equitable Division” State
Fortunately, that is not the case. Courts in Massachusetts are free to assign all or part of the equity in a house to either party in a divorce, regardless of who remains living in the house before the divorce is finalized. This is because Massachusetts is an “equitable division” state, meaning that courts have broad discretion to divide all of a couple’s marital assets (including the house) between the parties fairly, based on a number of factors described in Mass. Gen. Laws ch. 208, § 34. Some of these factors are the length of the marriage, the parties’ “age, health, station, occupation, amount and sources of income,” the parties’ “vocational skills [and] employability,” and the “needs of each of the parties….” Courts can also consider other factors including each party’s contribution to the marital assets, and their “contribution … as a homemaker to the family unit.” Although courts look at the particular facts of each case when they divide marital assets, courts generally strive to divide marital assets 50/50 unless there are good reasons to do otherwise.
This means that simply moving out of the marital home before getting divorced does not automatically cause you to lose your right to a fair share of the home’s equity in a divorce. But there are some things to keep in mind. First, if you stop contributing to the home’s upkeep after you move out and your spouse continues to pay the mortgage and other upkeep costs out of his or her own income, the court in a divorce may decide that your spouse should receive a slightly larger share of the home’s equity in the divorce to account for his or her disproportionate financial contribution to its value. Second, keep in mind that even though the court will typically seek to divide the total pool of marital assets equally, this may still mean that one spouse keeps the house, while the other spouse receives a greater share of other marital assets such as bank accounts or retirement funds to ensure that the overall distribution of assets is fairly balanced. Lastly, if you are moving out of the marital home and you have children that will continue to live with your spouse, you should be prepared to pay child support to ensure that your children are adequately provided for. These are just a few of the issues that can arise in the division of a marital home in a divorce, and you should consider seeking legal assistance that is specifically tailored to your situation.
If you have any questions about this or any other family law matters such as getting a divorce, the distribution of marital assets and debts, child support and/or child custody and visitation rights, contact the attorneys at Callahan, Barraco, Inman & Bonzagni, P.C. at (508) 372-1200 or contact us online.