My ex does not want to leave the house. What can I do?

Often in the context of divorce, the same or similar questions are asked to lawyers. In this series of articles “The most frequently asked divorce questions” our family law attorneys will answer some of these questions.

Question:

I am getting divorced or already divorced and my ex (still) lives in the house that belongs to both of us and he/she does not want to get out: what can I do?

Answer:

Several scenarios are conceivable.

Either spouse takes over the property. This means determining the value of the home in order to assess whether there is an over- or under-value that may need to be shared and to assess whether the acquiring party can take over the mortgage and bear the mortgage costs alone, so that the other can be released from joint and several liability with regard to the mortgage obligations. So for this purpose, a valuation report is often prepared first.

When parties divorce by mutual agreement, often with the help of a mediator, the divorce covenant (the agreement between the ex-spouses regulating, among other things, the property consequences of the divorce) contains agreements on the value of the house, the amount of the mortgage debt and the amount one of the spouses has to pay to the other by virtue of overbirth. It also stipulates that parties go to the notary within a certain period of time to have the deed of delivery, also known as the deed of partition, drawn up. By that deed, the share of the property of one party is legally transferred (delivered or assigned) to the other party. Last but not least, the divorce covenant lays down how long the party leaving the home can continue to live in the home and who pays what charges of the home.

In case, during the process of making agreements, it has not yet become fully clear whether it is possible for one of the parties to take over the home, agreements will also be made and recorded in the divorce covenant on what is to happen if, at a certain date, it eventually turns out that neither of the parties wants to or can take over the home. It is then stipulated that the home will be sold. All kinds of conditions relating to this sale can also be laid down. This can be done in detail by, for example, determining the bid and offer price and all kinds of other conditions, but it can also be done more loosely by, for example, stipulating that the parties jointly manage the sales process, often in consultation with a named estate agent.

In case the stipulated agreements are not fulfilled then they can be enforced with a variety of measures if necessary.
When divorce proceedings are adversarial (parties do not agree with each other and have each engaged their own lawyer to litigate the various issues in dispute in connection with the divorce), the court may be asked to make decisions on a variety of matters relating to the marital home.

For example, a party can ask the court to decide that the home be allocated to him or herself at a certain value and against payment of, for example, half of the surplus value to and discharge from joint and several liability in respect of the other party’s mortgage obligations. The court can then decide the requested allocation. After such a decision, the parties always have to go to the notary to have the notarial deed of partition mentioned above drawn up.

If the parties do not agree on what the value of the property is, the court can appoint an appraiser (estate agent) as an expert who will then make a binding determination of the value. If deemed necessary and if requested by the party, the court can also attach coercive measures to the allocation of the home to one of the parties, such as a penalty payment. The court can also order that a property must be vacated by one of the parties by a certain date. The court may even determine that the cooperation of one of the parties for having the said partition deed drawn up at the notary is not required but the court’s decision replaces the cooperation of the party refusing to cooperate.

It sometimes happens that in the proceedings it is not yet completely clear what the (im)possibilities are of whether or not the home can be allocated to one of the parties. The court then often decides that the party requesting the allocation of the property is given a period of time to find out whether the property can be allocated to that party for a certain amount and whether the other party can be discharged from the aforementioned joint and several liability, and then regularly decides that if this is not clear within a certain period of time, the property must be sold. Even in proceedings, the court can then set conditions regarding that sale and attach coercive measures to it.
Sometimes parties themselves do not request anything concrete in divorce proceedings regarding a home and other assets but ask the court to rule “that the parties should proceed to divide their matrimonial community of property”, which the court then decides. The parties often do this in the hope or assumption that they will be able to settle matters including the house by mutual agreement after the court’s ruling on the divorce. In the unlikely event that a settlement cannot be reached about the house, new proceedings will have to be conducted about, for example, the division or sale of the house. In these, all kinds of decisions as mentioned above can then be requested from the court.
The above situations have always assumed partners who are married or in a registered partnership and thus come before the court because the court has to pronounce the divorce or dissolution of the registered partnership and additional applications or follow-up applications (claims that are brought by the court as new proceedings after the divorce decision) can then be made.

If the parties are not married or are not registered partners, sometimes not even having a cohabitation agreement, they can live together in a home owned jointly. If the relationship then breaks down, all sorts of things have to be arranged regarding the joint home as well. The same issues as mentioned above come into play: will one of the two continue to live there and become 100% owner of the property or will neither of them want to or be able to take over the property and will it have to be sold? Again, the cohabitants can sort this out by mutual agreement, with or without the help of lawyers and/or mediators, and if that fails they can ask the court to make decisions (as mentioned above) on this.

The above always assumes that there is a surplus value in the home to be shared but it also happens that there is a residual debt. The court can then determine which of the parties is liable for what part of the residual debt. This is separate from the question of who can sue the bank for a (residual) debt. After all, the bank can usually sue both parties for the entire (residual) debt because it has stipulated joint and several liability in the loan agreement it concluded with the parties. The court cannot change this in the proceedings between the parties, but can only determine that if, for example, the parties each have to pay half of a (remaining) debt (i.e. have an obligation to pay it) and one of the parties, because it is held liable by the bank, has paid everything, he/she then has a (recourse) claim against the other party for all that the other party should have paid on the basis of the obligation to pay determined by the court.

Some parties deliberately choose to leave the property temporarily undivided. This is also possible. There can be all sorts of reasons for this undividedness. For example, sometimes the partners want to wait for a better time to sell the home especially if at that time, for example, there is a residual debt on sale. It may also be that attribution to one of the parties is not financially feasible but more time is needed to create a new living situation for both parties and their children, one wants children to finish school before moving, etc.

Of course, good agreements must then also be made on how long this undivided ownership will last, who will live in the house during that period, who will pay what (mortgage) charges related to the house, etc. There are also other aspects involved here. For example, who deducts the mortgage interest paid for income tax purposes and which tax rules apply to this. Mortgage interest is not automatically deductible. It is recommended that you obtain information on this from a tax adviser.

The basis for deciding on the division and sale of a joint property is the legal provision that anyone who is a shareholder in a joint property can ask for the division of that joint property. The law then also regulates what specifically all can be asked of the court if the parties can no longer settle it together. Above, we have indicated what possibilities there are. Not all possibilities have been mentioned because we do not want to make it too legal and complicated for you. However, we can help you if you no longer manage to settle the matter with your ex-partner.

Are you facing such a scenario, feel free to get in touch.

The most frequently asked divorce questions

Often in the context of divorce, the same or similar questions are asked to lawyers. In this series of articles “The most frequently asked divorce questions” our family law attorneys will answer some of these questions.

If you have a question you would like to see answered in the next ” The most frequently asked divorce questions”, please let us know!