Leases and Divorce

If you and your soon-to-be ex husband don’t own real estate together, well, then, that’s one less thing to fight over or worry about. Whether one of you buys out the interest of the other or you decide to sell your home, there are almost always some difficulties. If you sell the home, especially, it can be complicated, because you often have to have repairs done leading up to the sale (which can cost money), you have to wait for a prospective buyer (which can take awhile and make moving on to bigger and better things more difficult), and, worse still, if you’re underwater (which, thankfully, we’re seeing less and less of as we get further away from terrible 2008, but still sometimes happens) you may have to BRING money to close just to get out from under the obligation.

We don’t own a home. We have a lease. What do I need to know if it looks like we’re going to get a divorce?

However, just because you haven’t purchased real estate together doesn’t mean things are necessarily free and easy. If you and your husband currently have a lease together, you may both be stuck – at least for a little while. To know exactly what the deal is, of course, you’ll need to read the lease. Like any other contract, leases are legally binding, and they sometimes contain unique terms. I can’t just tell you what your lease says without seeing it myself, but a good way to figure it out (at least, to get an initial idea) is to go back and re-read it. There may be some confusing pieces or things you don’t understand, but you’ll likely get the gist of it. If you have more questions, you should either talk to an attorney or go straight to your landlord.

When can I get out of my lease?

Pay close attention to the terms of the lease. Many leases are for a year, and then, after that, go month to month. If you’re in the month to month phase, you can just give your landlord thirty days notice (or whatever the lease says) in order to break the lease.

Make sure you provide your notice exactly as required in the lease. A conversation of “I think maybe I’m going to move,” probably isn’t enough. Most landlords require written notice that you intend to leave your current home.

What if my husband wants to stay? (What if I want to stay?)

If either of you wants to say, you know, sans the other one, just talk to the landlord. If you’re on the month to month part of the lease, you can probably just execute a new lease for the following month, removing the party who wants to leave from liability.

If it’s you who is leaving, you want to make sure you’re off the lease – you don’t want to be able to be held responsible for his non payment or late payment. If you’re on the lease, you’re on the hook!

What do I need to have to rent a new place?

Every landlord does things a little bit differently. For most places, you’ll need to fill out an application, pay a security deposit, and provide some references. You will, of course, need to verify your income.

If you are depending on child or spousal support to have enough income to qualify for your rental, you’ll need to show that you’re regularly receiving it. Ideally, you’d have an agreement or court order providing the necessary amount of money, but your landlord may accept copies of bank statements showing at least three months of that level of support.

Typically, you qualify to pay rent in an amount up to 33% of your gross income. For someone earning $40,000, that would mean you could pay $1374 in rent. Do the math, and make sure you find something that you can afford.

I need child and/or spousal support to qualify for a rental. What should I do?

It’s probably a good time to talk to an attorney. You’ll either need to reach an agreement with your husband, or file something with the court and let a judge award support. To get an idea of what you might receive, an attorney can run guideline calculations for you.
If he won’t agree, you’ll have to go to court. And it may be best, depending on how much income you have independently, for you and your husband to live separate under the same roof, if there’s not physical danger to you.

I’m worried that he’s going to be physically violent. We can’t live together. What should I do?

If you CAN’T live together because you’re worried he’ll be violent (especially if he has been violent before), it’s probably a good idea to apply for a protective order. You can get a temporary one by going to the magistrate’s office. To get a permanent one (2 years, in Virginia), you’ll have a hearing. I definitely recommend hiring an attorney, but you could theoretically go to the hearing without one.
You’ll want as much evidence as you have – police reports, pictures of your bruises, recordings, threatening text messages, etc – but make sure you also provide your attorney with any negative information, too. Attorneys need to know all sides of an issue, both good and bad, to formulate the best arguments.

What happens to the security deposit?

Assuming that you haven’t done any damage to the house or paid rent late, your security deposit should be refunded. If you and your husband paid it jointly from marital funds (which you likely did), then you should split the refund when you get it. If he takes it and doesn’t give you your share, document that, and we’ll come back to it in the divorce later on.

Usually, it’s easier to resolve things when you don’t own property together. At least, there’s no question of how to make repairs that neither of you can scarcely afford or waiting to find a buyer in a tricky market or at a less-than-perfect time of year.

It may have some challenges, though, and the best thing you can do is prepare yourself to meet them. Divorce is always a little tricky, but can also definitely be for the best! For more information or to talk to an attorney about your unique situation, give our office a call to set up a confidential consultation at 757-425-5200.

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