Once a couple has initiated a divorce, the debate over which spouse will leave the marital home is typically one of the first to arise. Before the filing, tension likely builds for quite some time, and once a spouse files, the emotional strain grows exponentially. If you’re the one considering moving out, consider these factors before packing your bags and it is important that you contact a divorce attorney to get the best legal advice possible.
You Probably Don’t Have to Leave, But You May Not Want to Stay
If your husband or wife asks you to move out, you don’t have to agree. If you’re a joint owner of the home, you have just as much right to be there as the other spouse does. A judge’s order is the only thing that can force you to vacate the marital home, and that usually happens only in cases of domestic violence or danger to the children.
With that said, unless you live in a large home where it will be easy to avoid your soon-to-be ex-spouse, it’s not always a good idea to live together during a divorce. The optimal approach is to write a contract that includes agreements on living arrangements, child custody, and financial matters. A forced living arrangement only increases animosity and conflict during the divorce, and disputes over marital homes are expensive if they can’t be worked out. Divorce attorneys can help clients work honestly and fairly to achieve a reasonable outcome.
Does Moving Out of the Home Affect Parenting Time or Child Custody?
If there are minor children in the home, custody issues are a crucial consideration in the decision to vacate. Leaving the children behind with no agreement on visitation and custody may create problems in the future. Judges may view such a parent’s actions as an indication that the children aren’t a priority, and they often use that factor against parents in contested divorce and custody cases.
Furthermore, if there’s a temporary parenting and custody agreement where the children must remain in the marital home, it might become permanent regardless of your stance on the issue. This may occur if the family court judge determines that changes would disrupt the children’s lives. Before leaving the family home, consult an attorney to learn how your departure may affect your custody case under the state’s laws.
Can the Other Spouse Claim Desertion?
Some jurisdictions still recognize fault-based reasons for divorce. For instance, desertion occurs when one spouse intentionally abandons the other, cuts all ties, and refuses to support his or her children. Usually, a spouse must be away from home for a year or more to file for divorce on the grounds of desertion. You should note, however, that leaving because of divorce or separation, or to get away from mental or physical abuse, does not typically constitute desertion. Discussions with a divorce attorney can help you avoid a potential desertion claim.
Leaving Belongings Behind
When a divorcing spouse moves out of the marital home, it’s not usually a well-planned process; they pack a few things and leave. In most cases, the rest of one’s property is a secondary concern, because you’d assume that you’d be able to get it back in due time. However, once you’ve left the home, your future access may be limited. Before moving out for good, it is best to gather your important documents and make agreements on sentimental items and personal belongings.
In Closing
Divorces are never easy, even when spouses try to keep things amicable. Issues of finances, child custody, visitation, and keeping the marital home can delay the proceedings and result in hostility and resentment. The Law Offices of David Kohm can provide more advice on living at home during a divorce, please call our law offices today at any of our convenient locations and get a free consultation.
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