We hear this question all the time: “I’m getting divorced. I can’t stand my spouse anymore. We do nothing but fight, and I want to move out, but I’m worried about losing my rights if I do. Should I stay in the home, or can I move out?” The answer to this question varies depending on whether you’re safe in the home, whether you have children, and whether you and your spouse can agree on how to manage the mortgage and the children while your divorce is pending.
Of course, safety should be the first priority. If you are not safe in your home, then leave and find somewhere safe. If you don’t have a family to stay with, look into shelters in your area. Local church organizations will often have resources for people in these situations.
If you are not safe and you have evidence that your spouse committed physical or sexual violence against you or your child, you can file a protective order and ask the court to award you temporary possession of the house. This is a way for you to stay at home and get your spouse out of it.
The rest of the scenarios below assume that you are safe in the home.
If you have children and you want to be awarded joint physical custody of them in the divorce, you should typically remain in the home. Before the court awards a parent joint physical custody, it wants to see that a parent is actively involved in their children’s lives. It’s hard to be actively involved if you’re not living in the home, and it’s hard to justify unilaterally taking children out of the home they’ve been in and moving them to a new residence with you. One successful pathway through this predicament might be the following:
Sometimes we have people say they can’t stand to be in the home with their spouse for one more day and they must move out, or sometimes things are so contentious that it’s unhealthy for the parents and/or the children if parents continue living together. If you must move out, try to negotiate a temporary plan with your spouse detailing how you’re going to pay the mortgage on the home and what the parent-time / custody schedule is going to be until you finalize your divorce or until you get into a Temporary Orders Hearing. It’s best to get this plan in writing. Having a plan will prevent putting the children in the middle of a tug-of-war where the parents are fighting over who gets to see them and for how long.
If you don’t have children, moving out of the marital residence is far less problematic. If you are married, you will not lose your rights to the home just because you move out. The court understands that divorcing couples don’t want to live together anymore and won’t fault a spouse for moving out to avoid arguments and contention. However, if at all possible, come to a written agreement with your spouse regarding who will pay the mortgage and other expenses related to the home and who will be responsible for repairs and upkeep of the house until your divorce is finalized.
Yes, document, document, document. Document the condition of the home and the property left inside. If your spouse is willing, walk through the house with them and take a video documenting each room, its contents, and its condition. Doing this together can help avoid disputes later about what property was actually left in the home. If your spouse is not willing to do this, do it yourself. This video will need to be provided to your attorney.
Don’t spend needless time and headaches during this stressful time wondering what you should do. Get advice from experienced divorce attorneys. Schedule a consultation with us to get started.
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