Citation. 108 N.M. 814, 780 P.2d 640, 1989 N.M. App.
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A husband and wife divorced, and the wife was the sole occupant of the house. He claims that there was constructive ouster by his wife.
Synopsis of Rule of Law.
When spouses divorce and one party continues to occupy the residence during the divorce case, this may be constructive ouster, which exists when joint occupancy is impossible or impractible because of the divorce, through no fault of either party. When constructive ouster exists, separated spouses must pay rent equal to one-half the rental value to the spouse no longer in occupancy during the time between the date of the divorce and the date of the final judgment.
Facts.
A husband and wife divorced, and the husband left the family home, leaving the wife in exclusive occupation. They held the home as community property during the marriage and as tenants in common after the divorce. The husband contends that he was constructively ousted from the home and requests half of the reasonable rental value of the home.
Issue.
When constructive ouster in the marital context, does one spouse have to pay rent to the other?
Held.
Yes. Judgment affirmed.
An ouster may exist when the realities of the living situation, without fault by either party, prevents them from sharing occupancy. The joint tenancy would be impossible or impractible because of the character of the residence.
When two parties are going through a divorce, and one spouse continues to occupy the residence between the date of the divorce and the date of the final judgment on property division, there may be constructive ouster. There does not have to be any fault or misconduct by either spouse for constructive ouster to be found. The emotions of the divorce make it impossible for the parties to live together. The occupying spouse will be liable to the other spouse for half of the reasonable rental value of the home.
Here, the husband was not constructively ousted. Instead, he abandoned the residence because he chose to leave to live with another woman, which is why the wife filed for divorce. The husband delayed for several years before demanding any rental payments from his wife, which also indicates his intent to abandon his interest in the property.
Discussion.
When spouses are going through a divorce, living together is usually impossible, but both parties still retain a common interest in the property. The rental payments during the proceedings will allow the spouse who leaves to still enjoy his interest in the property before the final property division judgment is made.
