Divorcing spouses face many difficult decisions. One of the most difficult can be whether – or when – to move out of the marital home. People often have strong emotional attachments to their homes, and a house may be a couple's most valuable financial asset.
In some situations, the right decision is clear. For example, if there is domestic violence in your home, you may need to leave for safety reasons. If this is the case, you also need to take additional steps, such as going to court for a protective order, asking a judge to order the abusive spouse to leave the home, and requesting temporary custody of any children. If you're in an abusive situation and need to leave your home with your kids, you will need some advice about your rights. Consult an attorney, battered women's agency, or the domestic violence self-help center in your local court, if there is one.
For many divorcing spouses, the situation is less clear-cut. If there is no violence in the home but the environment is hostile or conflict-ridden, continuing to live together may not be healthy for anyone. Conflict between parents can be especially confusing and difficult for children, and having one parent move out may be the best for all concerned. But before making a final decision about moving out, give careful thought to how this might impact child custody and property rights down the road.
Judges in Colorado favor living arrangements that maintain stability for children. If the children remain in the family home during a divorce, the parent who lives there with them has the advantage in a dispute over which parent should have primary custody. A parent who moved out will object to being penalized for leaving if it was in the children's best interests to keep peace in the home. Parents can avoid this argument by agreeing – in writing – that the parent who is leaving is not giving up any legal rights. Ideally, parents will have a written agreement with a detailed parenting schedule before anyone moves.
If you are moving out but are not able to agree with your spouse on how to share parenting, the next best option is for you to ask the court to establish a shared parenting schedule. Establishing a schedule early in the divorce process allows time for shared parenting to become the new status quo.
Many families find it challenging enough to maintain one household. Trying to establish a second household without additional income can be a tremendous burden. A spouse whose name is on the mortgage or other household bills for the marital home remains legally responsible for such expenses, even if living elsewhere.
While a divorce is in progress, a Colorado judge will usually require a high-earning spouse to pay temporary maintenance (also called alimony or spousal support) to a spouse with less income. This may mean that the higher-earning spouse can't afford equivalent housing after moving out; it may also mean that the spouse who stays in the home gives up money or property in the ultimate division, to make up for having had the benefit of staying in the home.
In general, the fact that one spouse stays in the family home at separation doesn't necessarily make that spouse more likely to receive the house when the property is divided permanently. Colorado law requires marital property in a divorce to be divided "equitably," which means the division must be fair, though not necessarily equal. Many factors go into a determination of what is equitable. A judge may consider the desirability of awarding a family home, or at least the right to live in the home for some extended period of time, to the custodial parent, but this would only be one factor. Other factors include each spouse's contribution to the acquisition of marital property (including contributions as a homemaker); the value of all property awarded to each spouse; the economic circumstances of each spouse at the time the property division becomes effective; and any increase or decrease in the value of separate property during the marriage, as well as whether separate property has been depleted for marital purposes.
Homeowners should also remember to think about the furnishings and personal property within the home. A spouse who moves out should create an inventory of all property and photograph significant or expensive items. Unless there is an agreement between the spouses regarding taking items from the home, the spouse who moves should take only personal belongings, such as clothing or jewelry.
Couples who get along relatively well may be able to implement creative temporary solutions. Parents may choose to live in the home with the children for alternating periods—such as a week or two at a time—using a system sometimes called "bird-nesting." While this requires a high level of cooperation between the parents, it can be a good solution for spouses who can stay with family members or friends part-time, or who can afford to rent a small apartment that they also take turns living in. The obvious advantage of this plan is that it allows the children to stay in their familiar surroundings.
Another possibility that sometimes works for couples with a larger home is to divide the house into occupancy areas, with a schedule, if necessary, for use of common areas. While neither of these options is likely to be good long-term solutions, in the short term they can provide some much needed relief from both financial and parenting concerns.