Family Law

Apartment or House Lease in Divorce and Property Division

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A major issue in most divorces is dividing your property and making long-term plans for your living arrangements. The range of property may be broader than you think. Property includes tangible items, such as a house, car or furniture, and legal rights, such as the lease for your rented home.

Find out the possible effects of your divorce on your current lease, and your future rental plans. You may also have to address lease rights in your divorce documents.

Your Lease as Marital Property

Another name for the home you share with your spouse or family is the marital home or residence. Homes come in many forms and include single-family houses, attached homes, apartments, boats, trailers or mobile homes.

It's likely that you rent or lease that home if you don't own it. Your rights in a rental property are called a leasehold. When spouses acquire a leasehold during marriage, it's marital property and it can be included in theproperty division in a divorce.

State laws govern real and personal property, and your divorce lawyer can determine whether or not there are any special issues to deal with in your case. For example, some states give a tenant the right toend a lease whendomestic violence and safety are issues. Some states also have specific laws for boat and mobile home leases.

While less common, also note that property division issues exist if your marital property includes commercial leaseholds. For example, you and your spouse may have investments or business ventures including commercial leases.

Your Divorce, Your Landlord and Lease Details

A basic question is whether or not you need to address your lease in your divorce. The answer may be no. Manyresidential leases are for a year or less, so there's a good chance your lease will end before your divorce is final. You'll be free to make new plans to lease or buy your next home on your own.

Your property settlement or the court can also address lease rights to your home. The court or your settlement could grant either you or your spouse temporary or exclusive rights to your rental home. Here are some issues to think about related to your leased property:

  • You and your spouse should sign an agreement assigning or transferring from one spouse to the other all rights as lessee under the lease
  • Confirm that the spouse staying in possession of the rental must assume all responsibilities, such as paying rent and utilities
  • If your landlord won't let the spouse moving out to remove his or her name from the lease, consider including a ''hold-harmless'' clause in the agreement indemnifying the out-spouse from liability
  • The spouse keeping the rental should be required to make every effort to remove the other spouse from the lease as soon as possible
  • Include a term that occupancy rights end when certain events take place, such as the occupying spouse's cohabitation or remarriage
  • Address lease rights such as options to purchase, and how refunds ofsecurity and cleaning deposits will be handled
  • Find out if lease changes would have any effect on rent control protection

Getting divorced is never easy, but you can get through this difficult time in your life. Your divorce lawyer can provide invaluable help in moving through each stage of the process, including completing property division issues.

Questions for Your Attorney

  • Is my landlord free to choose to rent to either me or my soon-to-be ex-spouse at the end of our current lease?
  • Can we include terms in the property settlement to protect my rights if our landlord won't take my name off the lease and my spouse will stay in the rental? What about unpaid rent or damage to the unit?
  • I know my landlord won't remove me from the lease. Can I at least demand that my spouse needs to carry the rental's utility accounts in her name alone?
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