You do not lose your rights. If the community estate has an interest in the home, then it will be considered in the division of property. In regard to taking actual possession of the home during the course of the case, it’s certainly more difficult to secure that relief if, in fact, you have left the house and established a second residence such as an apartment or other dwelling. The court generally tends to maintain the status quo through its temporary order. However, if you have left the residence because of some type of physical, mental, verbal, or emotional abuse or harassment by your spouse, the court should seriously consider whether your spouse should be made to move out of the house and have you regain exclusive temporary use and benefit of the home.
In regard to securing the right to have final possession of your home, the court will figure the value of the home and its net equity into the general division of property. Depending on the value of the other assets of the community estate and how the division of property is made, you may receive the residence as part of your division of property.
Finally, in the event that you move out of the family home prior to or at the earliest stages of the litigation, if you have left your children behind to live with your spouse and that spouse is capable of hadling the responsibilities of raising children, then the likelihood is that:
the children will stay in the family home and the primary possessory parent will reside with them; or
at the final resolution of the case, whichever parent has primary possession of the children will have the advantage of deciding whether to keep the former marital residence as the children’s primary residence, to sell it or to have the other spouse have the residence.
The circumstances surrounding any decision to move out of the former marital residence prior to a court order awarding the temporary exclusive use of the home should be discussed with your attorney at the initial consultation. If it is imperative that you move for fear of imminent danger or constant abuse, a strategy should be set in place for the care, comfort, and control of the children with an eye on regaining possession and use of the home as part of a temporary or final order.
Laurence A. DePlaza specializes in all aspects of family law in Dallas. He has achieved Martindale-Hubbell’s highest rating given to small and solo practices.