There’s always a lot of discussion about home ownership whenever the topic of divorce comes up. Often, there’s an assumption a family home with a mortgage is somewhere in the mix.
But plenty of married people live in apartments, and plenty of divorcing spouses wind up with apartment leases they have to deal with. Here’s what you need to know if you have a landlord instead of a mortgage.
The lease is marital property.
You may think the lease is marital debt, but in reality it’s considered marital property. And since a lease can’t exactly be divided up and sold like a house can the judge must award the lease to one spouse or the other. One of you is moving out.
Unfortunately, the judge can’t break your lease for you. Nor can the courts get the landlord to agree only the spouse living in the home has an obligation to that lease. If your name is still on it, you could still be held responsible for it.
To strengthen the obligation to pay on behalf of the spouse living in the apartment, we’d typically want to make sure the settlement included a “hold harmless” clause which clarifies the person moving out is not to pay the rent whether the landlord takes him or her off the lease or not. This will not stop the landlord from going after you if your spouse remains in the apartment and breaks the lease, but will give you some remedies, giving you the power to come back to family court to compel the spouse to abide by the divorce decree and pay up.
Leaving the apartment early could spell trouble.
One spouse is almost always tempted to just get up and leave before the divorce is final. But this can cause a host of problems. If there are children it can weaken any custody case you’d like to make. It can also weaken your claim to the lease. If you’d like to be the one to keep the apartment, moving out is the worst thing you can do.
Sleep in separate rooms if you have to, but let the dust settle before you simply take off. As long as you’re still legally married and both names are still on that lease your spouse does not have the right to run you off.
You can’t change the locks until the divorce is done.
So your spouse has left against all good judgment, and you don’t want him or her to be able to access the apartment again. You may be tempted to ask your landlord for a lock change.
Don’t do it. Your landlord shouldn’t do it. It’s against the law. The only way you can keep your spouse out of the property is if you have a PFA (protection from abuse order) which bans him or her from re-entering the property. Even then you can’t really change the locks. You can only call the police to enforce the PFA.
Breaking the lease is hard to do.
Many people are tempted to break the lease after a divorce, often because they can’t afford the apartment anymore. But Pennsylvania makes it hard to do. Unlike other states, you can’t even necessarily break the lease as a victim of domestic violence. A bill (HB 1051) was introduced in 2016 which would have changed this, but it never came up for a vote.
If you have a private landlord he or she may be understanding and can choose to let you out of the lease. A corporation rarely will. You can always ask.
You also may be able to mitigate the consequences of breaking your lease by helping your landlord find a new tenant. If you can help your landlord find a qualified replacement tenant you may be able to keep him or her from pursuing you for the full amount of the remaining months.
Breaking the lease might not be your best solution. Remember, within the boundaries of the law, everything is negotiable in a divorce settlement. It might be wise to try to pursue temporary spousal support payments which can make up the difference between your rental amount and what you, personally, can afford to pay. Because a broken lease could still end up on your ex’s credit report it may be in his or her best interests to go ahead and make those payments for a few months. You’ll then have time to find an apartment you can afford, and you’ll have a chance to get the lease to its endpoint.
Be careful how you deal with your landlord after the divorce.
If you want to stay in the apartment you have several options.
Many landlords won’t ask questions about your personal business as long as you continue to pay the rent on time. Staying quiet and sending the checks may be your best bet. While a landlord can’t evict you for no longer “qualifying” for the apartment while the lease is in force, he or she can ask you to move after the lease is done. After all, the landlord might have rented the apartment on the basis of both your incomes.
However, it may be you and your ex would both prefer to have just one name on the lease: the name of the person staying. In that case you might have to ask the landlord to sign a new lease. He or she might well agree simply because it’s easier for all parties. You just need to be aware of the risks of bringing the matter to his or her attention. Depending on how long you have left on the lease it may be wiser to finish it out and either go month-to-month or pursue a new lease in your own name at that time. And if your landlord is going to give you a hard time you might want to move anyway…you’ve got enough headaches to deal with during this tumultuous time.
Don’t deal with your divorce alone.
Whether it’s making decisions about an apartment lease or trying to navigate child custody issues, divorce is complex. There are a lot of pitfalls to worry about.
So don’t go it alone. Put a qualified family law attorney on your side. Contact the offices of Sadek and Cooper for a free consultation today. It might just be the best decision you ever made.