Family Law

Apartment or House Lease in Divorce and Property Division

By Kristina Otterstrom, Attorney
Learn more about how to handle your lease during your divorce.

Is a Lease Considered Marital Property?

The “marital residence” is the home, apartment, condo, or trailer you share with your family. Essentially, it’s where you live together as a family unit. If you don’t own your residence, you and your spouse have probably entered into a rental agreement (a "lease" or "leasehold"). A lease acquired during a couple’s marriage is marital property, which is subject to division during a divorce. Even if the lease is in your spouse’s name only, you may have a claim to it.

Courts in virtually every state have the power to divide a leasehold. This means a judge will award the lease to your or your spouse. If you have questions about the responsibilities and benefits of keeping a lease after your divorce, speak to a family law attorney for advice.

What Should I Do If I Want to Keep the Lease?

If you’re in a short-term lease, it may be best to wait out your divorce and sign a new lease as soon as it’s completed. Moving during a divorce can be difficult. However, you may want to keep a long-term lease and exercise the purchase option to capitalize on any equity you’ve built up during your marriage. A judge has the ability to award a leasehold to one spouse, but that doesn’t guarantee that a landlord is obligated to follow it.

Your rental contract will impact your rights to the residence and whether a landlord is bound to honor the court’s decision. To ensure that your landlord honors the court order, you should present the following to your landlord:

  • copy of the court order awarding you the leasehold
  • an agreement between you and your spouse transferring or assigning all rights under the lease, and
  • a hold harmless clause signed by both spouses, stating that the spouse keeping the lease will take responsibility for any damages to the rental property.

In some cases, a landlord may refuse to remove your spouse’s name from the lease. This is where a “hold harmless” clause can alleviate your spouse’s worry and protect them in the event of damage to the property. Your divorce decree or other agreement should also address when your spouse needs to move out and how you’ll handle options to purchase rights, security deposits, and cleaning fees.

What If I Don’t Want the Lease?

Matters can get even more complicated if neither spouse wants to keep the lease, but there’s a lot of time left on your contract. A judge can’t simply cancel a rental agreement. Your best option is to talk to your landlord and try to work out a solution.

In certain states, you can get out of a lease if you’ve suffered domestic violence, had a serious injury, or declared bankruptcy. Additionally, if your landlord violated the terms of your lease agreement, you may have another excuse to break it. Finally, you can always talk to your landlord about finding someone else to take over your lease.

Questions for Your Attorney

  • My lease is almost up, but I want to keep the condo that my spouse and I lived in during our marriage. Is my landlord free to rent the property to me at the end of the current lease?
  • My spouse was awarded the lease as part of our divorce, but the landlord refuses to take me off. How can I best protect myself?
  • My spouse began leasing our home before we were married. I want to keep the lease, but do I have any chance?
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