Who stays in the apartment in a divorce?

I’m currently going through a divorce. My wife and I have 2 children and neither one of us wants to move. The apartment is under my name and so are all of the utilities. Who has he right to the apartment or does the judge determine that?

Asked on June 13, 2012 under Family Law, California


Cameron Norris, Esq. / Law Office of Gary W. Norris

Answered 8 years ago | Contributor

The previous answer is correct.  The law would have you share the apartment until your divorce is finalized.  You could come to some agreement that you will move out and that any portion of the rent you pay with offset any spousal support payments that you may have to make.  As of right now, you are both liable for the lease payments and you both have a right to be there. 

It sounds like you aren't quite seeing eye-to-eye and have both custody issues and spousal support issues to deal with. 

I would recommend retaining a family law attorney to help guide you through this process.  Keep in mind that spousal support and child support are always modifiable and any agreement not to pay child support is unenforceable.

Best of luck and if you are in Ventura County feel free to contact me.

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

No matter whose name is on the lease, at this point the apartment is considered to be the "marital residence" and accordingly both parties have equal rights to live there. However all that can change if: a final divorce decree is issued and grants you possession; a legal separation agreement is executed and it gives you the exclusive use of the house; or some sort of temporary order is issued which calls for her removal.

At this point you need to speak to directly to a divorce attorney in your area. They can best explain your rights and remedies.

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