A house is often one of the most significant assets a person owns in life. That’s why during a New Jersey divorce, the question of what will happen to that house can be a tricky one. But what if your estranged spouse is trying to kick you out of that home while the divorce is still pending?

This very issue was at hand in the high-profile divorce of “Yellowstone” Actor Kevin Costner and his wife of 20 years, Christine. According to People Magazine, the actor wanted his wife to leave the family home they shared with their three kids. He cited a prenuptial agreement that reportedly gave her 30 days after any divorce filing to vacate any residence he owns - and is the home at question here was also solely in his name. A spokesman for the actor said Kevin Costner went over and above the original terms of the prenuptial agreement in offering to foot the bill for his wife’s moving and rental property costs. However, Christine Costner’s divorce lawyer insisted that no matter the terms of the prenuptial agreement, her ex can’t force her and/or their kids to leave the only home the kids have ever known.

As New Jersey divorce lawyers can explain, spouses usually cannot kick one another out of the marital home while the divorce is pending without a court order. That being said, there are a few notable exceptions. The most common instance would be situations of reported domestic violence, particularly when there is a domestic violence injunction/order of protection in place. The other would be if the property was separately owned by only one of the spouses AND it was not the shared marital residence.

Even if only one spouse’s name is on the deed and/or mortgage, that individual will have a tough time convincing the Family Court to force the other to leave the shared family residence prior to answering whether/how it should be equitably divided.

Equitable Distribution and the Marital Home

Houses, like any other property, may be subject to equitable distribution in New Jersey per N.J.S.A. 2A:24-23.1. In general, a house is marital property (as opposed to separate property) if it was built or bought during the marriage - even if only one person’s name is on the mortgage and title, and it was purchased with only one person’s money. A house bought together prior to the marriage can also be considered marital property, depending on the circumstances.

If a house is purchased by one spouse prior to marriage or received as a gift of inheritance by a third party, it might be considered separate property and not subject to equitable division in a divorce. However, as our Red Bank divorce lawyers can explain, that’s not an automatic designation. If it’s comingled with any of the other spouse’s property or if the other spouse contributed to the value of the home, the court may consider the home marital property. “Contributions” need not be solely monetary, such as paying a mortgage or financing improvements. It could involve direct physical assistance in maintaining the property - or even providing childcare and completing household chores so that the other spouse could do so.

A prenuptial agreement, however, could factor into this.

Can a Prenup Stipulate Who Gets the House?

If a prenuptial agreement is both viable and enforceable and designates the house in question as separate property, the Family Court is likely to consider it so.

However, key to this - in the Costner case and beyond - is whether the prenuptial agreement is in fact viable and enforceable.

Some ways in which the prenup might be challenged as unenforceable:

• One of the spouses lacked legal counsel. If both parties used the same lawyer or one had a lawyer and the other didn’t, it’s possible the court may conclude the lawyer-less party was taken advantage of in negotiations, and therefore void all or part of the prenuptial agreement.
• The agreement was not voluntary. Your signature may be on the document, but if you were compelled to sign it under duress (i.e., threat of physical, financial, reputational, or emotional harm) then the agreement might not be valid/enforceable.
• The agreement was signed too close to the wedding. Both parties need enough time to carefully consider the terms of a prenuptial agreement before signing it. If it was sprung on one of them last-minute, it’s possible the court will invalidate the agreement.
• Terms within the agreement are not enforceable. There are certain things prenuptial agreements cannot do. One of those is to determine child custody. In the Costner case, this could be relevant if the impact of the wife/mother being forced to leave is that she must leave her children behind or spend significantly less time with them.
• Terms in the agreement are unconscionable or unfair. If parts of the prenuptial agreement are clearly unfair or one-sided, the Family Court could deem it unenforceable. For example, if the agreement stipulates that a lower-earning spouse should receive no alimony (despite a long-term marriage with multiple children) or that all/most of the valuable assets should go solely to one party, such terms may be deemed unconscionable.

In summary, while it is possible one spouse may force the other to vacate the marital property while a divorce is pending, it’s not likely legal unless certain exceptions exist. If your case does not involve domestic violence, it’s generally inadvisable to allow your estranged spouse to force you to leave the marital home without first discussing it with a New Jersey divorce attorney. To know how this information may apply to the specifics of your divorce case, it’s important to talk to a lawyer familiar with the facts of your situation.

Our New Jersey divorce lawyers can assist clients with divorce, division of assets, prenuptial agreements, child custody disputes, and more. Call us at (732) 810-0034 or visit us online.