Question Details:I have been married for 10 years and we own 2 homes. We reside in the one, and the other is within 5 miles of my husbands work, vacant. My children are enrolled in this school system and I am a stay-at-home mother. If I stayed in my home and filed for divorce, what are the chances that they would give me the primary residence? Would I have to wait until the divorce was final before they made him move?
Alabama is an equitable distribution state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. There is no fixed standard to divide property, each case will be decided on its facts, and the trial court’s discretion will not be disturbed on appeal without a showing of clear abuse.
The division of property must be graduated according to the particular facts and circumstances of each case. The court may divide jointly owned property according to the equities of the case. It may award property to one spouse that was owned during the marriage by the other spouse, it may award property to one spouse even that was owned during the marriage by the other spouse’s corporation, and it may order property sold to bring about an equitable division of property.
Being a stay at home mom and the stability of the kids will be a factor in the decision I am sure. An agreement between you both will be looked at favorably by the court as well. Get legal help.
Until your divorce is filed, unless your spouse as put you fear for your safety, he has just as much right to live in the marital residence as you do. So, if he chose/refused to move out, you would have to wait until the divorce or other court order regardingthis issue. Therefore, do not do anything that would essentially act as an unlawful eviction, such as changing the locks. This could get you into trouble.