Often, it is difficult for a separating couple to continue living together while they work out their family law issues. Deciding who gets to stay in the home and who leaves can cause a lot of conflict that puts strain on a family. The decision is further complicated when children are involved, as their best interests should also be taken into account. When a couple turns to the court to make this decision for them, there are a number of factors that will be considered to determine the legal outcome, but avoiding taking the decision to court in the first place with a good old-fashioned compromise can often simplify the process tremendously.

Legal Entitlement to Remain in the Home

So long as one of your names is either on the lease or the title to the piece of property that you own together, it’s considered a family residence. You’re both entitled to stay there after separation until there is an agreement or court order that says otherwise, regardless of whether it is your name or your spouse’s name on the lease or title.

Decisions, decisions

What you’re entitled to and what works for your family aren’t always necessarily the same thing. So then the question is, how do you decide who gets to stay when you’re both technically allowed to? Your options are pretty much the same as they are in any other family law dispute: you either work something out between yourselves (either through informal or formal negotiations, or by using some sort of alternative dispute-resolution process like mediation) or you take it to court and ask them to make the decision for you. The former is likely to be less expensive and less risky. Going to court is always a gamble because you’re giving up control of the decision and putting it in the court’s hands instead.

Going to Court

If you take the decision to court, the court’s first consideration will be whether or not, in your particular circumstances, it’s actually necessary to order someone to leave the home. Sometimes, despite the fact that a separating couple finds it uncomfortable or unpleasant to continue living under the same roof, it’s simply not a serious enough situation to warrant a court order forcing somebody out. There may also be options available to a couple that would make the living situation more tolerable while working out the rest of the details of the separation - for example, there may be a basement suite that one party could move into for the time being.

Determining Factors

If the court determines that the parties cannot in fact continue to live in the same household, the court will then have to determine who should continue to live in the home. The court will take into consideration a number of factors which weigh the relative ability of and inconvenience to each party if they were forced to move out.

The court is going to want to know about your respective financial circumstances – could each of you afford to stay in the home? Could one of you find and afford new accommodations if need be? Perhaps one of you has family or friends who are willing to offer you a space. If that’s the case, and your spouse doesn’t have that same opportunity, it’ll definitely be taken into account.

The court will also consider whether there’s something special about a particular home or the way that’s it’s used that makes it more convenient for one party to stay. For example, maybe one of you runs a home-based business that would be difficult to move, or perhaps the home has unique features which were specially chosen or installed to accommodate a disability that one of you has.

Of course, the court will also consider the best interests of any dependent children involved. If one parent is the children’s primary caretaker, is it fair or convenient for the kids to have to move out or live with the parent who typically spends less time with them? The goal will generally be to minimize any unnecessary disruptions to the children during the separation, particularly in the middle of a school year.

Staying in the same home together after separation can be awkward, and can cause tension and conflict. But deciding who stays and who leaves isn’t always a black and white decision, and in many cases it can be difficult to predict the outcome if the issue were to go to court. Wherever possible, parties should negotiate or use alternative dispute resolution processes to find an acceptable compromise before asking a court to make the decision for them, particularly in cases where there are children involved and the court proceedings may be disruptive to them.