Divorce: consequences of moving out before divorce is filed

Divorce: consequences of moving out before divorce is filed

As promised, this the second part to last week’s blog post on what happens to a property in case of a separation or divorce. One question we hear very often is: if I move out of the house before filing for divorce, do I lose the right to my property? The answer is: no!

If you leave the home before you file for divorce you still have the same rights to the property. Many people believe they lose the right to the property. This is a misconception. You don’t need to continue living in the house to maintain your rights to it. However, what you must know is that if you leave the house you shared with your spouse and you decide to stop contributing to costs such as mortgage payments, there will be an adjustment to whatever you owe. 

What if one wants to sell the property?

You need to also be prepared for the possibility of one wanting to sell the property and the other one wanting to stay.  It is important to see what you can afford as “single” person now.  In most cases, the house is the primary asset and you really don’t have much of a choice but to sell. However, you need to know that legally a spouse is not allowed to sell, rent or mortgage a family home without the consent of the other, even if it isn’t a joint property. 

What happens to the existing mortgage in case of a divorce?

In case of a divorce, selling a home is not a complicated process, as long as both parties agree to do so. You don’t even need a family lawyer to help you – only the real estate lawyer.  What you need to analyze is the situation of your mortgage. If you need to break the mortgage with your current lender, ask about prepayment penalties (different from variable to fixed mortgages), administration fees, appraisals and other costs that may be associated with it. Then, you need to prequalify for the mortgage as a single income. If you can’t there are other possibilities, such as a guarantor (click here to see our post on guarantors and co-signers). If you ex-spouse decided to take over the mortgage, you should then remove yourself completely from the mortgage in order to not be legally responsible for payments. 

Be informed. If you require any further assistance, you can always contact our team of professionals to assist you.