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Should You Make the Move?

The question of whether one person should move out of the marital home during a pending divorce can be extremely difficult to resolve. There are certain considerations that are unique to each situation. It is often best to discuss your case with an attorney early on in the process so that they can start you off on the right path.

  • First, is there abuse? If there is any type of domestic violence in the home, you should do whatever is necessary to secure your safety and discuss it with an attorney. An attorney may be able to legally have your spouse removed from the marital home. Alternatively, leaving the home temporarily during this process may be the safest thing to do. If children are at risk, it is also reasonable to take them from the home; however, if you move out with your kids you should seek a court order for temporary custody at the earliest possible opportunity. It is important at that point to consult with an attorney so that you can adequately understand your options and not harm your rights to your home or your children.

  • Do you have young children? A court will want to ensure that your children's lives remain stable and will maintain the status quo because change can sometimes be difficult for children. Therefore, if you leave the home, a judge may be reluctant to allow the children to go with you, especially if you move to another school district. Another consideration is that if you have lived in your home for some time your children may feel more inclined to stay there than go to a new home and this means that they may favor spending time with whichever parent stays in the home.

Also, children tend to feel that the parent who moves out is the victim, and the one who remains is the aggressor. Do what you can to dispel that misperception. Some judges may also look unfavorably on the person who moves out when it comes to child custody. Also, if you must move out, you should meet with an attorney to establish a shared parenting time schedule immediately to ensure that you develop this routine at the outset. This will then become the new status quo.

  • What is nesting? Another creative option for couples with young children is called nesting. With nesting, each parent lives in the home with the children for alternating periods, like a week at a time. The children stay put in the home. The spouse whose turn it is to be out usually stays with friends or family members nearby, or if your budget will permit renting a small apartment that each of you also share.

  • Does your spouse make more than you? A higher-earning spouse who does move out of the family home must expect to continue paying many of the household expenses, including the mortgage and insurance payments, especially if he or she typically paid these expenses during the marriage. This generally means the spouse who leaves may end up in a less desirable living situation. Also, the spouse who stays in the home may ultimately have to give up money or property in the final division at the end of the case to make up for having had the benefit of staying in the home.

  • If you must leave, it does not necessarily mean that your spouse is more likely to receive the house when the property is divided permanently. California law requires marital property in a divorce to be divided either equally or equitably. This usually means that one spouse will be able to keep the house only if the other spouse receives either money or other property of comparable value.

  • What about the furniture? You should always have an inventory of all property, and photograph important items. If there is no agreement between the spouses about taking items from the home, the spouse who moves out should take only personal belongings and leave the furniture in the home until divided by agreement or Court Order. Moving out of the marital home can have a negative impact on your case. Do not do it without first discussing the issue with the Woodland Hills divorce lawyer at our law firm.