Should I move out of the marital home during a divorce?

Often one person decides to move out of the marital home prior to or in the beginning stages of a divorce. If the home was purchased during the course of the marriage, then the home is considered community property no matter who is living in the home, or whose name is on the paperwork, at the time of the divorce. Moving out will not affect your financial interest in the property, you will be entitled to share of the equity in the home regardless of where you are living.

Moving out can have several other consequences, however, and is a step that should be considered carefully. While both parties are entitled to a portion of the equity of the home, this does not necessarily mean the home must be sold. Sometimes, one party wants to remain in the home and ‘buy out’ the other party. If both parties are hoping to continue living in the home after the divorce, the person who moves out will have a weaker case. The person who moves out will have to convince a judge to change something, while the person who stayed in the home will just have to convince the judge to keep things the way they are. If you want to keep the home after the divorce, it is important to remain in the home while the divorce is pending.

Additionally, if you have children, staying in the marital home can strengthen your custody case. While numerous factors are considered in determining which parent should have primary custody, the ability to provide consistency is an important factor. If you remain in the home, your children will be able to stay in the same school and same bedrooms- the change in your children’s lives will be minimized by staying in the marital home. The person moving out initially is often forced for financial reasons to rent a less spacious residence, with less room for the children. The home environment can also play a role in a custody determination. Additionally, if you move out while the children stay, you will have created a situation in which you are the visiting parent. The court will look at the decisions you make, and if you have voluntarily left the children behind, this will be a consideration. Therefore, if you want to be the primary parent it is important to stay in the home or bring the children with you.

You do not have move out just because your spouse tells you that he/she wants you to leave. Both parties have a right to stay in the home. No one, including the police, can force you to leave your residence without a court order, unless there is domestic violence. In order to get such a court order in a divorce, a temporary orders hearing must held. During a temporary orders hearing the judge will determine who is awarded the exclusive use of the home. This means that if you and your spouse cannot agree as to who will live where while the divorce is pending, the judge will make a temporary decision for you. In some cases, when there are spare bedrooms, the spouses may agree to live together until the divorce is finalized in order to save money and ease the transition for the children. For other families, continuing to live together causes too much stress. The decision to move out is one that should be considered carefully, and discussed with a caring family law attorney who can help you make the best decision for you and your family.

Search