Spouses contemplating or proceeding with a divorce who have a residential lease obligation should read the lease agreement to determine if both spouses are named as tenants, and whether there are early termination provisions that may be available—if the spouses are interested in early termination of the lease.

If the spouses live in a community property state (as opposed to a common law state), both spouses may be liable for the lease payments even if both spouses are not named as tenants in the lease agreement. Community property states generally include Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

In South Dakota, which is a common law state and not a community property state, the liability for a residential lease in the event of a divorce typically depends on whose name(s) appear on the lease agreement. If both spouses are named as tenants, they are both responsible for fulfilling the lease obligations, regardless of their marital status. However, if only one spouse is named, that spouse would generally be liable for the lease payments. It is important for spouses to review their lease agreement for any early termination provisions that might allow them to end the lease early, potentially reducing their financial obligations. These provisions may include penalties or conditions for early termination that should be understood before making a decision. Since South Dakota does not follow community property laws, only the spouse whose name is on the lease would be held responsible for lease payments, unless the other spouse has agreed to be responsible in some other legally binding way.