Issues concerning the marital domicile and real estate are often the biggest issues that divorcing couples must resolve. The issues of real estate and divorce are often intertwined with complex issues concerning child custody, child support, marital division of assets, marital debt and other issues related to a divorce. This article only applies to Rhode Island Divorce.
1.) Real Estate and temporary use and possession of the marital domicile during the pendency of the divorce.
While a divorce is proceeding in court, there are several potential scenarios concerning the disposition of the real estate: (Please consult a lawyer / attorney concerning your legal options)
A.) Husband and wife reside together while the divorce is pending with or without children.
In many instances, husband and wife live together while the divorce is pending. In some cases, husband and wife live together out of financial necessity because the parties cannot afford to live separately. Other divorcing couples live together because they believe it is in the best interest of the child /children. Some people live together because both husband and wife refuse to leave the marital domicile.
If husband and wife are living together while the divorce is pending, they often reach an agreement as to who will pay the mortgage, taxes, insurance and other real estate related expenses.
In the event that husband and wife cannot reach an agreement then both parties have the right to file motion for temporary orders, asking the court to intervene and determine who will pay the mortgage taxes, insurance, utilities and other expenses for the marital domicile.
If the parties are not civil towards each other there is constant arguing or there is domestic violence / abuse it may become unworkable for the parties to continue living together. If either party is abusing drugs, alcohol or gambling then cohabitating during the divorce process may be unworkable. Either party has the right to file a motion for temporary orders asking for exclusive use and possession of the marital domicile while the divorce is pending.
If one of the spouse has no income and no ability to earn income then it is possible that the spouse who has income or earning capacity could be ordered to pay 100% of the expenses for marital domicile while the divorce is pending. This is especially the case if the unemployed spouse has minor children living at home.
One of the risks of living together while the divorce is proceeding is the that other party will file a restraining order or a complaint protection from abuse.
B.) Husband or wife vacates the marital domicile and there are no children.
If husband or wife voluntarily leaves the marital hime and the other party is residing on the premises then the parties have two options:
1.) Husband and wife reach an agreement, or
2.) Husband or wife files a motion for the court to determine who pays for the house. The person who vacated the house may be ordered to contribute towards the mortgage taxes, insurance and upkeep etc., if any.
If the parties cannot agree then either party can file a motion for temporary orders seeking contribution towards the mortgage taxes, insurance, and upkeep for the marital domicile. The Rhode Island Family Court will then make an equitable determination of who should pay the mortgage taxes and insurance for the marital domicile. How the Family Court decides this issue, depends on several factors including perhaps most importantly, the income and earning capacity of each of the parties. One Judge in the Rhode Island Family Court consistently rules that the spouse remaining in the marital domicile must pay the 1st $850.00 of the mortgage as rent and the parties split the remaining mortgage taxes and insurance 50/50.
C.) One spouse vacates the marital real estate, while the other spouse resides in the marital real estate with a child or children.
The parent who has temporary physical placement (physical custody) of the child/children will have the right to receive child support as well as the potential to obtain contribution to the mortgage taxes, insurance, and upkeep for marital domicile.
If the parties can agree to the correct child support amount and the contributions towards the mortgage, taxes, insurance for the property then a motion for temporary order may not be necessary.
If the parties cannot agree, the court will determine the correct child support amount using the Rhode Island Child Support Guidelines. The cost of daycare and medical expenses is factored into the Rhode Island (RI) child support guidelines. The court may also order that the spouse who vacated the property contribute to the mortgage, taxes and insurance for the marital domicile.
The courts main purpose is to preserve the marital domicile until the divorce trial can be heard. The amount of the child support and contributions to marital domicile will be highly dependent on the income and earning capacity of the parties as well as a particular circumstances of a case. If the spouse who lives with the children has no job and no ability to earn income and no earning capacity it is possible that the other spouse may be required to pay over and above the child support amount to maintain the status quo so that the other spouse is able to maintain the marital domicile.
The primary goal of a Rhode Island (RI) Family Court Judge is to preserve the marital assets until either a complete settlement is reached or the divorce can be decided after a full trial on the merits.
Rhode Island Attorneys legal Notice per RI Rules of Professional Responsibility:
The Rhode Island Supreme Court licenses all lawyers in the general practice of law, but does not license or certify any lawyer as an expert or specialist in any field of practice.
David Slepkow is a Rhode Island (RI) lawyer concentrating in divorce, family law, child support, alimony, adoption, custody and visitation. David has been practicing for over 11 years and is licensed in Rhode Island, Massachusetts and Federal Court.