Who stays in the house after the divorce

It is Chapter IV of Title IV of Book Two of the Civil Code of 2020, Articles 476 to 487. A warning against confusion: this chapter’s "hogar seguro" is not the hogar seguro of Ley 195-2011, which protects a principal residence from creditors. They share the name and nothing else.

Preferential attribution may be claimed by either ex-spouse when the common property is adjudicated. The right to remain may be requested by either ex-spouse or by any of the children under their patria potestad. The articles apply both to the dissolution process and to the marriage nullity process, unless clearly inapplicable or productive of an unjust result.

• For preferential attribution: that the dwelling constituted, at dissolution, the principal home of the marriage and the family, and claiming it when the common property is adjudicated.Verified against the official source
• For the right to remain: that it be the sociedad de gananciales dwelling constituting the principal home of the marriage and the family before the divorce process begins.Verified against the official source
• Requesting it in the same divorce file where the dissolution was by divorce.Verified against the official source
• Having the consent of both ex-spouses or judicial authorization to dispose of any right over the family dwelling, even where the ownership belongs to only one.Verified against the official source
• That the court identify in the judgment all the beneficiaries and establish the conditions and the period in which each is to enjoy the hogar seguro.Verified against the official source

• Evidence of which was the principal home of the marriage and the family at the moment of dissolution.
• The spouses’ agreements on the use and destiny of the dwelling, if any, which the court must consider.

1. 1

   Step 1: Tell the two claims apart

   Preferential attribution decides to whom the house is adjudicated when the common property is divided: it is ownership. The right to remain decides who lives in it: it is use. The Code itself says that the fact preferential attribution may be granted does not prevent the claimant from also claiming the right to remain. They are compatible and are requested separately.

2. 2

   Step 2: The three criteria of preferential attribution

   In assessing the petition for preferential attribution over the family dwelling, the court must consider three circumstances: each ex-spouse’s possibility of acquiring their own dwelling; the existence of other immovables in the conjugal patrimony that can serve the same purpose; and both ex-spouses’ economic solvency to meet their own needs.

3. 3

   Step 3: When the right to remain may be requested

   It may be requested by either ex-spouse or by any of the children under their patria potestad, and it may be claimed from when it is needed: in the petition for dissolution of the marriage, during the process, or after judgment is entered. If the principal family dwelling is the privative property of one of the ex-spouses and there is another dwelling belonging to the sociedad de gananciales, the court may establish the society’s dwelling as the family dwelling. And if there is no sociedad de gananciales dwelling, the court will determine how the right to a hogar seguro is to be met.

4. 4

   Step 4: The seven factors that weigh

   To grant the right, the court must consider: the spouses’ agreements on the use and destiny of the dwelling during the marriage and after its dissolution; whether the requesting spouse keeps custody of the minor children; whether they retain the extended patria potestad or the tutelage of adult children who are incapacitated or have physical impairments requiring special and constant assistance in the family setting; whether adult children under twenty-five remain in the home while studying or training for a trade; whether the dwelling is the only immovable in the conjugal patrimony that can reasonably serve that purpose; whether the requesting spouse, even with no children or none living with them, needs that special protection by reason of age and personal situation; and any other pertinent factor.

5. 5

   Step 5: What the hogar seguro is and what it includes

   From the grant of the right to remain, the immovable becomes the hogar seguro of the applicant and of the beneficiaries at the moment of the grant who are to live in it. The court will identify all the beneficiaries in the judgment and establish the conditions and the period in which each is to enjoy it. The right includes retaining the usual and ordinary furnishings of the dwelling, but not works of art, collectors’ items or other movables of extraordinary value that are not indispensable to the use and enjoyment of the immovable.

6. 6

   Step 6: The house leaves the liquidation

   This is the effect that changes most in practice. The request for the right to remain in the family dwelling has the effect of withdrawing the immovable from the liquidation of the marriage’s economic regime, until the cause justifying the grant disappears, the period given for its use and enjoyment is completed, or termination is requested by the ex-spouses, the other beneficiaries or their respective heirs. Meanwhile the rest of the property may be liquidated; the house may not.

7. 7

   Step 7: Nobody sells alone, even if the house is theirs

   The consent of both ex-spouses or judicial authorization is required to dispose of any right over the family dwelling, even where the ownership of the immovable belongs to only one of them. And if another family member with a right to inhabit it objects to the act of disposal, they must present a reasoned objection to the court in time; the question must be resolved in favour of the family interest deserving greater protection.

8. 8

   Step 8: Not even death extinguishes it

   The death of the spouse in whose favour the right was constituted does not extinguish the right of the beneficiaries at the moment of the grant who live in the dwelling, while the circumstances constituting it as a hogar seguro subsist. And the death of the owner of the immovable does not extinguish it either: the heirs may exercise the actions needed to protect their succession rights over the immovable, provided they do not impair the right recognized to the beneficiaries of the hogar seguro.

9. 9

   Step 9: How it is heard, and a note on the source

   The request for the right to remain after dissolution by divorce must be heard in the same file. If there is a reasoned objection by the owner of the immovable or by a third party with a real right over it, the matter will be settled in a plenary hearing. If the dissolution was by the death or presumed death of a spouse, it is dealt with in a summary hearing. A note on the source: Article 482 prints the citation "(31 L.P.R.A. § 6)" where the sequence runs from § 6855 to § 6857, so the number is truncated; and Articles 485 and 486 both carry the same citation, "(31 L.P.R.A. § 6859)". We reproduce them as they stand.

In the Court of First Instance, within the same file of the dissolution of the marriage. If the dissolution was by death or presumed death, in a summary hearing.

• Confusing this chapter’s hogar seguro with the hogar seguro of Ley 195-2011 against creditors.
• Asking for preferential attribution and believing that rules out asking for the right to remain.
• Waiting for the divorce judgment when the right may be claimed from when it is needed.
• Selling or mortgaging the family dwelling without the other ex-spouse’s consent or judicial authorization.
• Giving the right up for lost because a child turned eighteen, when the Code reaches twenty-five if they are studying or training for a trade.
• Taking works of art or collectors’ items from the home: the right covers the usual and ordinary furnishings, not those.

These are the government pages this guide is based on.

• Poder Judicial de Puerto Rico

  Poder Judicial

  bvirtualogp.pr.gov