Not wanting to be in the same home as your soon-to-be ex is perfectly understandable. However, moving out of the home may have numerous ramifications, both financially and for child custody purposes in the outcome of the divorce. The question here is if it always prudent for one or both parties to leave the family home once the decision has been made to get a divorce.
Staying in the Marital Home Is Hard
Obviously, staying in the home after making the decision to divorce is not easy. But, have you ever heard the saying, “Perception is reality”? In many cases, the judge will look at the person that has left the home and “perceive” this is what the couple wanted and since everything seems to be working fine, why mess with what is already working.
Regardless of the argument you make in court, it will always come back to, “If you wanted to be there so badly, then why did you leave in the first place?” If children are involved, your ex can also make the argument that moving the kids now will only create additional stress and turmoil for them, something everyone wants to avoid. By simply moving out, you may literally be giving up the keys to your home and giving your spouse pseudo-custody over the children! All possible angles need to be explored before making your decision to either move out during divorce or to stay in the marital home.
Child Custody and Moving Out
When seeking child custody, leaving the home becomes the riskiest proposition by far. Regardless of how much time you spend with the children after leaving, you are now giving the perception (there is that word again) that your spouse is capable of taking care of the kids on his or her own with only limited input from yourself. If, however, you still decide to leave, make sure you are with the kids at every available moment so you have some type of case to present when you go in front of the judge.
Moving out of the marital home does not necessarily mean that you have left the children behind. In many instances, one spouse will move out and bring the children with him or her. Of course, this means that the person moving out must have some reasonable place to go, whether it be with their parents or their own place that he or she has just rented. This is one way that allows the spouse moving out of the house to attempt to retain custody of the children. It is also best, especially if moving out during the school year, that the spouse that moves stays in the same school district as well.
Sometimes You Have to Move Out
Now, there are cases where simply living in the same home is not possible. There are numerous reasons why a spouse sometimes has no choice but to move out during divorce. For instance, if you are being abused, it is perfectly understandable why you need to leave the home. If this is the case, it is important to get the local police involved and have the abuse documented. In states that still allow “fault” divorces, this information will weigh heavily in your favor when it comes time to go through issues such as distribution of assets and debt and especially if children are involved. In fact, every judge will look at abuse cases differently than “standard” divorces.
However, it must be made clear that in homes where abuse is taking place, moving out of the home and leaving the kids behind with an abusive parent can hurt both your case to gain custody of the kids as well as your case that abuse took place in the first place. If you were to move away from an abusive spouse and leave the kids behind, expect the first question out of a judge’s mouth to be this: “If your spouse is an abuser, why would you leave your children behind with this person?” Keep this in mind when making your decision whether to move out during divorce or to stay.
What about Property in the Marital Home?
Lastly, know that if you do leave and decide to take personal property with you, the property must be inventoried before it is removed from the home. This means writing down in detail exactly what you brought with you when you moved and what you left behind. Because most property can probably be considered a marital asset, (and therefore joint property), its existence must be documented as part of the marital estate regardless of where the item actually is at the time of the divorce. If you still have more questions about how the law applies to your particular situation, it is best to speak with a local divorce professional that can guide you further.