Should You Move Out of the Family Home During a Divorce?

Before moving out of the family home, consider your state’s laws on separation before divorce, along with the potential personal and financial effects of a move.

By , Attorney

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 are some things to consider before you start packing your bags.

Do You Have to Move Out Before Getting Divorced?

In some states, spouses who are divorcing must live "separate and apart" for a period of time before filing for divorce or before a judge will finalize a divorce. Living "separate and apart" usually means that you aren't allowed to share a home with your spouse. In that case, one of you will have to move out if you want to get divorced. And you may not be able to wait until you get your divorce papers before you leave.

But in some states, it might be possible to satisfy the separate-and-apart requirement when you you and your spouse are living under the same roof, as long as you don't share a bedroom, don't have any marital relations, and maintain separate households. Even if your state allows this, it can be difficult to prove that you and your spouse are truly leading separate lives.

If you live in a state with a separate-and-apart requirement, you'll have to decide which of you will move out and which will stay in the family home.

See our state articles on filing for divorce to learn about the requirements for divorce where you live.

What If You Can't Afford to Move Out of the House?

One of the biggest challenges of separation and divorce is making your money stretch to take care of two households instead of one. Especially in tough economic times, some couples continue living together in the family home before their divorce is final—and sometimes even afterwards—because they simply can't afford to support a second household. However, as we've discussed above, this may not be an option in your state.

Ultimately, a higher-earning spouse who moves out of the family home during divorce will probably have to continue paying a portion (or all) of the household expenses, including the mortgage and insurance payments. As part of the divorce, the judge might distribute other marital assets to the spouse who moved out to compensate for the fact that the other spouse was able to remain in the family home.

When you need to move out but just can't afford to pay rent for another place, you might consider moving in temporarily with friends or family, if that's feasible. If you've been renting your shared family home, both you and your spouse might need to move and downsize in new places.

How Does Moving Out Affect You and Your Children?

Continuing to live together in the same home after the deciding to divorce can be challenging and emotionally confusing, both for you and your children. It can also lead to more arguments and resentment. Moving out might be a good way to make the process easier on yourself and preserve your mental health.

Having divorcing parents living under the same roof can be especially hard on kids, particularly if there's a lot of conflict in the home. If you have children and can't maintain a friendly, cooperative atmosphere, it might be in everyone's best interest to move out so that the family house can be a neutral, conflict-free zone.

Will You Lose Child Custody If You Move Out?

Although you won't necessarily lose your custody rights just because you moved out of the family home, the decisions you make now on the issue could have an effect on a judge's final child custody decisions.

Judges are aware that repeated change can be difficult for children, and they'll try to maintain the status quo whenever possible. When one parent remains with the children in the family home during a divorce, that parent may argue that changing this arrangement after the divorce will be disruptive for the kids. On the flip side, the "out-spouse" may object to being punished for leaving the house—even when the move was made with the children's best interests in mind.

To avoid this catch-22, you and your spouse should try to create a written parenting agreement before one of you moves out. The agreement should establish a schedule for both of you to spend time with the children. And it should state clearly that neither of you is giving up custody rights.

If you're having trouble working out a parenting agreement on your own, custody mediation might help you get through the obstacles. But if you aren't able to reach an agreement, the parent who moves out but wants 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.

Will You Lose Your Property Rights If You Move Out of the House?

If you and your spouse own your house, the property is probably your most valuable asset. That's one of the reasons the question of who gets the house after divorce can be so important and contentious. It can also be a source of worry when you're deciding who moves out before your divorce.

It might help to know that the spouse who stays in the family home during the divorce won't necessarily receive the house when the court finally 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. If you don't have enough money to do that, you might need to sell the house, negotiate a buy-out with refinancing, or continue to own the house together after divorce.

Some states also consider "fault" (such as adultery or abandonment) when dividing property. But 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.

Make Your Intentions Clear If You Move Out

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.

If you and your spouse can agree on the terms of your moving out, write out the details in a written separation agreement. Be sure that both of you sign the agreement. Even if you haven't hired an attorney to represent you in your divorce, you might want to have a lawyer review your agreement before signing.

Getting Temporary Orders When You Can't Agree About Moving Out

If you're not able to reach an agreement with your spouse about moving out, and you've already filed for divorce or a legal separation (if that's allowed in your state), you may ask the judge for temporary orders concerning the family home. 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 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.

Alternatives to Moving Out

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:

  • Birdnesting. Birdnesting or "bird's nest custody" is an arrangement where the children remain in the family home, and each parent lives there for alternating periods, like a week or a month at a time. If the parents can stay with friends or family members nearby, or the budget will permit renting a small apartment that they can also share, they might find this arrangement allows the children more stability.
  • House splitting. If the family home is large enough, the spouses can divide the house into separate occupancy areas. The spouses can then either share the common areas as needed or plan a schedule for use of common areas.

Of course, these arrangements won't work for everyone. And, as discussed above, they might not be an option in your state. If you're unsure about what you're allowed to do and the impact of your choices on your divorce, it could be a good idea to speak with an experienced family lawyer.

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