Although you might want—or need—to physically separate from your spouse while your divorce is pending, strong financial and emotional connections to your family home can make the decision to move out a difficult one.
To help you weigh the pros and cons of moving out of the family home during your divorce, here's a list of things to consider before you start packing your bags.
In some states, spouses who are divorcing must live "separate and apart" for a period of time before they can file for a divorce or before a judge can finalize a divorce. It might be possible for the spouses satisfy this requirement when they live under the same roof (for example, if they don't have marital relations), but usually, "separate and apart" means that you can't share a home.
If your state requires that spouses live separate and apart, you'll need to decide whether it's you or your spouse who moves out.
Continuing to live together in the same home after the deciding to divorce can be challenging. Being around your spouse day and night in this situation might result in arguments and resentment. Moving out might be a good way to make the process easier on yourself and preserve your mental health. Consider moving in with friends or family or finding another place to rent if you can afford one.
Having divorcing parents living under the same roof can be especially hard on kids. If you have children, it might be in everyone's best interest to move out so that the family house can be a neutral, conflict-free zone. Also, the decisions you make regarding residence in the family home now could have an effect on a judge's final child custody decisions.
Judges are aware that repeated change can be difficult for children, and will maintain the status quo whenever possible. When children remain in the family home during a divorce, the parent who lives with them can argue that changing this arrangement after the divorce will be disruptive. On the flip side, the other parent will object to being punished for leaving the house—even though the move was made with the children's best interests in mind.
To avoid this catch-22, parents should try to create a written parenting agreement before one of them moves out. The agreement should establish a schedule for both parents to spend time with the children and should state clearly that neither parent is giving up their custody rights.
If the parents can't reach an agreement, the parent who moves out but wishes to have significant parenting time must ask the court to establish a shared parenting schedule. The earlier this can be accomplished, the better, so that shared parenting becomes the new status quo.
The spouse who stays in the family home during the divorce won't necessarily receive the house when the court divides the couple's property. State laws require judges to distribute marital property either equally or "equitably" (fairly). 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. Some states also consider "fault" (such as adultery or abandonment) when dividing property. Even in these states, judges also consider other factors such as the length of the marriage, each spouse's contributions to the household (including contributions as a homemaker), and each spouse's health, age, employability, and other resources. Judges usually don't base property division on who lived in the family home during the divorce.
If you decide to move out, it's a good idea to create an inventory of all the personal property in the house (such as furniture and appliances), and photograph important items. Unless you have an agreement stating otherwise, take only personal belongings, such as clothing and jewelry, with you when you leave.
Even though moving out of the family home during the divorce doesn't automatically mean you lose custody or rights to keep the house after divorce, you shouldn't take any chances. Put your intentions in writing.
As mentioned above, if you and your spouse can agree on the terms of your moving out—for example, by drafting a parenting plan and statement that neither of you gives up any rights to marital property—write out the details of the plan, sign it, and make sure your spouse signs it, too. If you're working with an attorney, you might want to have your attorney review it before signing.
If you're not able to reach an agreement about moving out with your spouse, you can ask the court handling your divorce for "temporary orders." The purpose of temporary orders is usually to allow the family to maintain as much of the status quo as possible. But if the judge agrees that it's in everyone's best interest for you to move out of the family home during the divorce, it's likely that the judge will enter temporary orders outlining the terms of your move out, such as a parenting schedule and a plan for preserving the marital property until the divorce is finalized.
For couples who are able to communicate civilly during their divorce, there are some creative short-term options that can ease financial and parenting problems, such as:
One of the biggest challenges of divorce is making the income that once supported one household stretch to take care of two. Especially in tough economic times, some couples continue living together in the family home because they simply can't afford to support a second household.
Ultimately, a higher-earning spouse who moves out of the family home after divorce will likely have to continue paying a portion (or all) of the household expenses, including the mortgage and insurance payments. Depending on the couple's financial situation, the court might distribute other marital assets to the spouse who moves to compensate for the fact that the other spouse was able to remain in the family home.