Living Arrangements-When the Marital Home is a Rental Property

 Posted on January 14, 2014 in Divorce

One of the most important issues facing spouses in a divorce involves their living arrangements.  Homeowners, unsurprisingly, must consider their legal rights upon the division of marital property such as the house and furniture.  However, renters must also consider their legal rights under their current lease for their rented home.

The Lease Is Marital Property

The home that spouses or families share is typically called the marital home or residence.  Types of marital homes can include, but are not limited to, single-family houses, attached homes, apartments, mobile homes, boats, and trailers. When the marital home is a rental property, spouses’ rights in that property are called a leasehold.  The leasehold, rather than the rented property, is what courts consider marital property to be divided upon divorce.  Accordingly, divorcing spouses may have to address lease rights in their divorce settlement documents that discuss the current lease and or future rental leases.

 Divorcing Tenants’ Rights and Responsibilities Should Be Spelled Out

Tenants are usually legally bound to pay rent for a full lease term, typically one year, whether or not they continue to live at the rental property.  In most cases, only individuals who live at a rental property that is unsafe,violates health or safety codes, or proves uninhabitable can break the terms of a lease. The Illinois Attorney General’s Office provides a helpful list of basic tenant’s rights issues the state.

However, as a practical matter, if the lease for the marital home is for a year or less, there is a good chance the lease will end before the divorce is finalized.  If the lease expires before the divorce is finalized, ex-spouses can be free to commit to a new lease or purchase a home. If the lease will not expire before the divorce is finalized, a property settlement or decree by the court can address lease rights to the marital home.  The court or settlement documents could grant either ex-spouse temporary or exclusive rights to the rental property serving as the marital home.  Tips for Divorcing Tenants

An attorney working on your behalf can explain the specific options in your specific case. In general, however, it is always critical to craft a specific plan as early as possible regarding how the lease will be handled. This usually involves verifying that the spouse remaining in the rental property will accept the financial responsibilities of the home. As added protection it may also be necessary to ensure the agreement includes indemnity details so that the spouse leaving the dwelling is protected in the event that their former partner fails to pay rent or otherwise violates the terms of the lease.

Whether you own or your rent your home, divorce can complicate your living arrangements.  A divorce attorney can provide valuable aid in moving through each stage of the divorce process, including tackling property division issues.  For a free and confidential conversation with an attorney serving the Kane County area, contact divorce attorneys at Goostree Law Group, P.C. to schedule a consultation.