Understanding Ownership of the Family Home in Divorce Proceedings
The attribution of use of the family home is one of the most relevant issues in the event of divorce or sentimental breakup.
In this article we will answer some of the most frequently asked questions, such as who owns the house after a divorce, how the existence of minor children affects the home, or until when you can have the use and enjoyment of the family home. .
What is considered family housing?
The family home is one that, during the couple’s marriage or union, is used as their habitual residence .
It must be the habitual residence of the family unit, the place where the family has lived together with a desire to remain.
Who is responsible for the use of the family home in the event of divorce, separation or breakup?
Our FAMILY Code, regulates the attribution of the use of the family home in case of marital annulment , separation or divorce .
What is established in this article will also apply to de facto couples .
To resolve this question, the first thing that will have to be taken into account is whether or not there are children .
Attribution of the use of the home with minor children
If there are minor children, the attribution of use of the family home will depend on the type of custody of the children.
1) Single-parent, individual or exclusive custody regime
The most advisable thing, in case of separation or divorce , is to reach an agreement with the other party (spouse or partner), for the good of the children and yours.
If an agreement is not reached, when there is single-parent custody , the use of the family home will be assigned to the children and the custodial parent (the one in whose company the children remain).
What if the home is owned by the non-custodial parent ? Although the family home is the exclusive property of the non-custodial parent , in the absence of an agreement, its use will be assigned to the children and the custodian.
Even if the home is owned by a third person.
The basis of this attribution is the interest and protection of minors.
2) Shared custody regime
Joint custody of minor children is increasingly common.
With this type of custody, the children will remain with each of the parents for alternate periods of cohabitation .
The law does not provide for the attribution of the use of the family home for the type of shared custody .
In the absence of agreement between the parents, it will be the Judge who decides based on the circumstances in each case . He must always prioritize the best interests of the minor .
Possible scenarios depending on whether the family home is common or exclusively owned by one of the parents:
- Family home for both parents
- Attribution of use of the home for alternate periods . In this case, the children will always remain in the family home .
- Exclusive temporary attribution to a single parent . When the economic situation of this parent is the one most in need of protection. The other parent must have a decent home to live with their children during the corresponding period.
- Family home owned by one of the parents
- Exclusive temporary attribution to the parent who does not own the home. When the non-proprietary parent is the one most in need of protection and the other has the possibility of living in another suitable home.
- Exclusive attribution of use to the titular parent. As long as the non-title parent can live in a decent home during the period of cohabitation.
3) Distributed, split or distributive custody regime
This type of child custody is the least common .
Now, it is possible to distribute custody of the children between the parents , if justified reasons exist.
Two family groups are created: that of the father and the children who live with him and that of the mother and the children who remain in her company.
However, the law does not provide for the attribution of the use of the family home for this type of custody.
If there is no agreement between the parents, the Judge will decide according to his reasonable and impartial criteria, prioritizing the interest of the minor .
The family home is attributed to the family group most in need of protection. If an interest most in need of protection is not proven, you may choose between:
- Division of the family home (if it is susceptible to division).
- Temporary and rotating use for each family group, according to the scenarios that have been explained previously in the shared custody regime.
Attribution of the use of the family home without children
The law refers to the attribution of the use of the family home to the spouse most in need of protection even if said home is the exclusive property of the other spouse.
Now, jurisprudence understands that use may also be attributed when the home belongs to both spouses .
Likewise, the provisions of the aforementioned article apply when there are only children of legal age .
Can the owner spouse dispose of the home if the use and enjoyment corresponds to the non-owner?
Consequently, the spouse who owns the family home occupied by the non-owner will need his or her consent to sell it, for example.
In the absence of consent, it will be necessary to go to the Judge to authorize the owner.
The importance of being advised by specialists
The emotional, family and financial implications of a divorce can be too significant if the appropriate decisions are not made during the process.
Having the support of a lawyer specializing in family law is essential to achieve the most favorable result possible for your interests and defend your rights.