A house is often a couple’s most valuable financial asset, and most people are emotionally connected to their home as well. For those reasons, the question of whether one person should move out when spouses decide to divorce can be extremely difficult to resolve. The specifics of your situation will determine the answer for you.
If there is domestic violence in the home, you should do whatever is necessary to secure your safety, including going to court for a protective order and asking a judge to order the abusive spouse to move out. 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 must obtain a court order for temporary custody at the earliest possible opportunity, to avoid accusations of kidnapping. If you’re in an abusive situation and need to leave your home with your kids, consult an attorney.
What about situations that are less clear-cut? Even if there’s no violence in your home, continuing to live together in the same home after the decision to divorce has been made can be challenging for everyone, and especially hard on kids if there’s a lot of conflict. In considering a move, issues of child custody and property are front and center.
Judges are aware that repeated change can be difficult for children, and will maintain the status quo whenever possible. If the children have remained in the family home during a divorce, the parent who lives there with them can argue that changing this arrangement will be too disruptive, while the parent who moved out will object to being penalized for leaving when it was in the children’s best interests to reduce conflict in the home. Parents can avoid this argument by creating a written parenting agreement before one of them moves out, establishing a parenting schedule and agreeing that the parent who moves isn’t giving up any rights by doing so.
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.
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.
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. This generally means the spouse who leaves will end up in a less desirable living situation. Depending on the overall picture, the spouse who stays in the home may give up money or property in the ultimate division, to make up for having had the benefit of staying in the home.
The fact that one spouse stays in the family home at separation doesn’t necessarily mean that spouse is more likely to receive the house when the property is divided permanently. State laws require marital property in a divorce to be divided either equally or “equitably,” meaning 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) in dividing property. Even in these states, however, many factors could be relevant, including the length of the marriage; each spouse’s contribution to the acquisition of the property (including contributions as a homemaker); and each spouse’s health, age, employability and other resources. Who lived in the house between the time the spouses separated and the time the divorce was ready to be finalized isn’t likely to be a major factor.
Homeowners should also remember the personal property and furnishings in the home. A spouse who moves out should create an inventory of all property, and photograph important items. If there is no agreement between the spouses about taking items from the home, the moving spouse should take only personal belongings, such as clothing and jewelry.
There are some creative short-term possibilities that can ease financial and parenting problems for couples who get along relatively well. One option is for parents to live in the home with the children for alternating periods, like a week at a time—this is sometimes called “bird-nesting.” If the spouses can stay with friends or family members nearby, or the budget will permit renting a small apartment that they can also share, parents may find that it works well for the children to stay put while the parents rotate in and out. Of course, this requires a high level of communication and trust between the parents. A second possibility, if the house is large enough, is to divide the house into separate occupancy areas, and either share the common areas as needed, or plan a schedule for use of common areas.
In some states spouses must separate physically for a specified length of time before a divorce can become final. Make sure you find out what your state law requires if you’re considering continuing to live together; so that you know you will satisfy your state’s requirements.