Drop off the key, Lee

Why it's hard to force a soon-to-be ex-spouse to leave the marital home -- and why that spouse should leave anyway.

You are getting divorced. You and your spouse are living in marital misery, hiding from each other in your own home, barely speaking, or only engaging in conflict when you do. Your spouse knows that he or she will eventually have to leave, because they agree that you will be staying in the home with your children. They just don’t want to go yet, either because they are in denial about the divorce really happening, or because they think they cannot afford another residence. So your house is filled with tension and discomfort -- but you both refuse to leave the home. 

It is possible under some circumstances to get the Probate and Family Court to make your spouse leave the marital home, but the bar is very high and such motions are not often granted. Even if you can’t force your spouse to go, there are many reasons it is in both of your interests for one spouse to leave the house. While such reasons likely include the psychological well-being of both spouses and the children, this post addresses the requirement for separation before a mortgage can be financed or refinanced. In short, neither of you may be able to afford for them not to go.  

Can I get the court to order my spouse to move out of the house?

You can bring a motion to vacate in the Probate and Family Court asking the court to order your spouse to leave the marital home. The order is good for 90 days but can be extended after that. A court may not order a party to vacate marital premises unless the other spouse may show that if the spouse remained in the home, “the health, safety or welfare of the moving party or any minor children residing with the parties would be endangered or substantially impaired.”  See G.L. c. 208, s. 34B. The stress and tension that are often present in most divorces simply does not meet this standard. You would have to show that your spouse is physically or emotionally abusive of you or your children, or that you or your children are suffering or at risk of substantial emotional harm as a result of your spouse’s conduct.

Given the strict standard under the removal provision, more often than not you will be stuck living with your soon to be divorced spouse unless one of you changes your mind or until the court makes permanent orders incident to your divorce.  

 So how do I get him/her to leave?

Very simply, because under many circumstances it would be in your spouse's best interest to vacate.  Separation is necessary so that:

•   You can refinance in your own name;

•   Your spouse can avoid liability on a loan for a home he or she no longer owns;

•   Your spouse can finance his or her own home; or

•   You can both refinance to a lower rate prior to divorce.

The sooner your spouse vacates and the parties are separated, the sooner you can start to establish a track record of child support or alimony payments.  Proof of support payments must be shown before the spouse who is staying in the home can refinance the mortgage in his or her own name and the paying spouse can buy their own home.

What do I need to show to be able to refinance?

Federal lending rules require that if child support or alimony is to be used as income for purpose of mortgage qualification, support must continue to be paid for at least three years after the date of the mortgage application. Proof that the payments will continue for at least three years must be in the form of a divorce decree or a separation agreement if the divorce is not final, that indicates payment of alimony or child support and states the amount of the award and the period of time over which it will be received.

Also, child support or alimony must have been paid consistently, on-time, and in full, and there must be evidence of the payment for six to twelve months before the application depending on the loan program. If support payments are made late, not in full, or are not paid regularly, the income will not be counted for the purpose of qualifying the borrower.

A lender “should not consider any proposed or voluntary payments as income” to satisfy the three year documentation rule. If a divorce decree or separation agreement is not available, lenders may accept any other type of written legal agreement or court decree describing the payment terms for alimony or child support, such as a temporary agreement that has been formally executed and, preferably, submitted to the court as an agreed-upon order. In the instance of child support, lenders will go so far as to examine the children’s ages to determine whether the receiving parent is entitled to child support for another three years. 

If such an agreement or decree is also not available, lenders may consider documentation that verifies any applicable state law that requires alimony, child support, or separate maintenance payments, (in Massachusetts that would be the Child Support Guidelines), which must specify the conditions under which the payments must be made.

What does this mean to my soon-to-be ex-spouse and me?

Unless the marital property is to be sold, the children’s primary caretaker is typically the spouse who will remain in the marital home after divorce, or in the instance of joint physical custody, often the lower earning spouse if the mortgage is ultimately affordable to him or her. This post assumes that the paying spouse understands and ultimately will not fight that. Usually, the marital home will need to be sold or transferred from joint ownership to the spouse who will remain living there, and that person will need to refinance the home in his or her own name. Even if If child support and/or alimony will be paid, the sooner the paying spouse starts, the sooner the receiving spouse will be able to refinance.  

These rules affect the spouse paying support, not just the spouse receiving support. First, the sooner the receiving spouse can refinance, the sooner the paying spouse no longer has liability on the home loan. If the receiving spouse stops paying the mortgage, the paying spouse would be responsible for the loan, even if they are no longer on the deed. This could be catastrophic for the payor's credit rating if the house if foreclosed upon and worse if the lender pursues the paying spouse for a deficiency judgment. 

Second, if the paying spouse wants to buy a new house or a condominium, they will need to show what payments they have to make under a separation agreement and/or judgment of divorce.

Also, spouses considering divorce who want to refinance to a lower rate first might be denied on the basis of their prospective divorce. Even if the house will remain in both spouses names after divorce for some time, the parties may wish to refinance to a lower interest rate.  Lenders can figure out that parties are divorcing from clues and tip-offs on bank statements provided to the lender, like payments to a divorce attorney, mediator, arbitrator, divorce therapist, or court required parent education class. Without the required documentation, applications for refinancing may be denied if a lender suspects divorce.

For all of these reasons, it is critical that spouses who have decided to divorce separate as soon as can be accomplished in order to document six to twelve months of consistent, timely support payments. In sum, even if you cannot force your spouse to leave the marital home, there are reasons why it may be beneficial to both of you for them to leave as soon as possible. You should discuss these reasons with your spouse and/or with an experienced divorce attorney if you are represented, so that you can negotiate his or her peaceable exit from the marital home as quickly as possible.