Young couples starting out often need to rent for some time before they purchase a house. Others have opted or were forced to sign rental agreements due to the recent economic turmoil and fluctuating housing market. Getting divorced while renting raises a myriad of questions. A couple needs to be aware of how to approach their living situation based on their goals.
When Both Parties Want to Stay
Being in a lease agreement while getting divorced can be complicated. It is always best to attempt to resolve the issue yourselves or, if necessary, with the aid of an attorney. Tell your landlord to see if they are willing to remove one spouse from the lease or offer other concessions. While the court has the authority to determine who gets to stay in the leased property and who must move, a landlord does not have to honor the court order.
One remedy in this situation is to have your attorney create a “hold harmless” agreement with your ex-spouse. This document states that one spouse will remain in the apartment or rental taking full responsibility for paying the rent and utilities. If the remaining spouse does not hold up their end of the agreement they can be sued by their ex for damages. Keep in mind that any agreement made between you and your ex-spouse does not supersede the landlord’s rights to act against one or both spouses if both are still on the lease.
When Both Parties Want Out
Often there will be a clause in your lease that will release the parties if they lose a job, get divorced or have some other major life changing event. If no such clause exists, read your lease to fully understand the penalty for breaking it. Check with your landlord to see what, if any, options they may offer. If a substantial length of time remains on the lease your best course of action may be to come to an agreement over who will maintain it and who will be moving out to avoid absorbing the costly penalties associated with breaking a lease agreement. Whomever moves out can opt for a month-to-month lease rather than entering into another long-term agreement while the divorce is in process. If that is not an option you and your ex-spouse may be looking at splitting the cost of the money owed on the remaining lease as part of your divorce settlement.
Thinking ahead
Whether you are renting a house, a condo or an apartment, once you’ve decided how you want to proceed decide how best to execute that decision. If you are breaking your lease what is it going to cost and how will it affect your division of assets in your divorce? If the landlord or proprietor is willing to take one party off of the lease make sure that the proper action is taken to complete this process. Will your landlord want to return your security deposit and collect a new security deposit from the spouse assuming the lease? Do you need a “hold harmless” agreement drafted? Will the landlord want to run a new credit check on the spouse that is staying or ask for proof of income? If you are the spouse that is moving out will you qualify for a rental without your ex-spouse? Consider all these questions, speak with an attorney, but most importantly have a plan.
Acting now
Deciding to separate is a big step and it’s hard to know where to start with a divorce. A logical first step is to call a divorce attorney who will walk you through the personal, legal, and financial steps necessary to initiate a divorce. Your family law attorney will become a valuable resource, with wisdom from years of experience dealing with the very issues you’re facing for the first time.
Buncher Law is located in the city of Irvine and serves the greater Orange County area. Our attorneys simplify the divorce process and are there to guide and support you through this transition to new beginnings.