If you’re going through a divorce in Minnesota, you may be wondering whether you should move out of the family home before, or during, your divorce case. The answer is it depends. Generally speaking, if child custody, parenting time, or the division of property (including the family home) will be contested issues in the divorce proceeding, you might want to think twice before moving out.
The reality is that legal “precedent” (meaning an example or a guide, which will be considered later by a judge) is set when one spouse moves out. If one spouse has already moved out, and the new living arrangements seem to be working fine, Judges may not want to disrupt the status quo. The spouse that stayed in the house with the kids may argue that another move would cause too much disruption for the children, so things should just stay as they are, with the spouse who already moved out, staying out.
These arguments don't always carry the day, but judges will often consider them. If custody is an issue or you really want to keep the house, try to stay put until the “temporary relief hearing,” which is your first opportunity to get in front of a judge and explain why you should stay.
If you need to move out of the home immediately because of an abusive or otherwise unlivable situation for you, or the children, consider the following:
Domestic violence is a serious problem. If you, or your children, are being abused, you should get help immediately. Contact the local police department and/or an attorney that can advise you of your rights. Most police departments have units dedicated to assisting victims of abuse, and domestic violence charges often have a major impact on divorce cases. You should be fully informed on how to protect yourself and your children.
For more information about domestic abuse and how to get help in Minnesota, click here for the Domestic Abuse Project Website.
If you move out and leave the children with your spouse, you’re implying (by your actions) that the other parent can provide a safe home for your children.
If you want to take the children with you, but your spouse won’t agree to it, you must go to court and get permission from a judge before you do so, or you may be charged with kidnapping.
If you do move out without the kids, make sure that you continue to spend significant amounts of time with them so you don't risk limiting your parenting time later. If you fail to keep continuing contact with your children, your spouse may try to argue that you abandoned the children and therefore, lost the right to spend time with them.
Take videos or still photos of everything you take with you. It's fine to take your own personal property, clothing, and jewelry, but be careful about taking jointly-owned property, or anything that will disrupt the household, such as appliances, electronics, or furniture.
If you leave without much, make an inventory of everything in the house before you go. In addition to photos and/or videos, create a list of items, with their locations and your best estimate of current values.
Later on, if you and your spouse get into a dispute about marital property, your photos and lists may serve as evidence of what existed at the time of separation. Organizing the information about your property in this manner can also help make the division easier.
Finally, you may want to let your spouse know about your inventory of property. This should discourage your spouse from “misplacing” any important items.
Updated by: Lina Guillen, Attorney