Issues Related to the Marital Residence During a Divorce

This Week’s Blog by Nicole M. DiGiose

Can I Change the Locks of the Marital Residence When I Start a Divorce?

Generally, no.  Once a dissolution of marriage action is commenced, the Automatic Orders go into effect. Paragraph B(8) of the Automatic Orders prohibits either party from denying the other party use of the parties’ current primary residence without an order of the Court, so long as the parties are living together on the date of service of the Automatic Orders.  However, parties are free to agree, or the Court may order that one party have exclusive possession of the marital residence during the pendency of the action.  In those situations, the locks may be changed.

Can the Marital Residence be Sold During a Divorce?

Yes, but only by agreement of the parties or an order of the Court.  Paragraph B(1) of the Automatic Orders prohibits either party from selling, transferring, exchanging, assigning, removing, or in any way disposing of any property during a dissolution of marriage action, except in the usual course of business, for usual and customary household expenses, or for reasonable attorney’s fees in connection with the dissolution of marriage action, absent a written agreement of the parties, or an order of the Court.

What if my Spouse doesn’t Agree to Selling the Marital Residence During a Divorce? 

Absent a written agreement of the parties, either party may petition the Court for relief from the Automatic Orders.  It is unusual, however, for the Court to order the house to be sold while the divorce is pending.  If the Court made such an order, it would likely order that the net proceeds of sale be held in escrow until the divorce is final, as the Court cannot assign assets until that time.

Does Voluntarily Vacating the Marital Residence Hurt my Chances of Retaining it in the Division of Property? 

No.  There is a difference between occupancy and ownership.  While one party may occupy the marital residence during the pendency of the divorce, it doesn’t necessarily mean that that party will be awarded it in the overall division of property.  At the time of entering a decree dissolving the parties’ marriage, the Court may assign to either party all or any part of the parties’ estate.  The Court may pass title to real property to either party or a third party, or may order the sale of such real property.  Pursuant to General Statutes Section 46b-81, the Court shall consider various factors in fixing the nature and value of the property, if any are to be assigned.  Such factors include, but are not limited to, the length of the marriage, the causes for the breakdown of the marriage, and the age, health, station, and occupation of the parties.  The Court shall also consider the estate, liabilities and needs of the parties and the opportunity for each party for future acquisition of capital assets and income.  Finally, the Court shall consider the contribution of each of the parties in the acquisition, preservation, or appreciation in value of their respective estates.

Does Voluntarily Vacating the Marital Residence Impact the Care and Custody of Our Children?

No.  In fact, pursuant to Connecticut General Statutes Section 46b-56(c), in making and modifying orders related to the custody or care of minor children the Court shall consider various factors, one of which is the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provider the Court may consider favorably a parent who voluntarily leaves the child’s family home during the pendency of a divorce action in order to alleviate stress in the household.

At Broder & Orland LLC we have extensive experience addressing all issues that may arise with regard to the sale of the marital residences in the context of divorce in Fairfield County and Connecticut.  Our knowledgeable attorneys will counsel you to ensure that you are fully informed of your rights as they relate to your marital residence.