Should I leave the marital home during the divorce process?

by | Jan 18, 2022 | Family Law

Few things are as unsettling as sharing a living space with a person with whom you have fallen out of love. If your marriage is bound for divorce but is still living under the same roof with your soon-to-be ex, the best-case scenario is that it is awkward and unsettling. The worst-case scenario is that it is downright intolerable and even dangerous, especially if there is a history of threats and violence in the marriage.

The most sensible thing to do would be to move out of the home you share. But, how will this affect your divorce case? Even if you can afford it, there are a number of factors you need to consider before moving out of the marital home while the divorce is underway. Here are some of them:

Moving out could amount to abandonment

In the eyes of the divorce court, the equivalent of “abandonment” is “desertion.” While desertion can be the basis for a no-fault divorce, in order to prove it, you must show that the other party’s exit from the family home was voluntary, unjustified and without the intent of returning. You must also establish that the other spouse did not approve of it.

Whether you are pleading a fault-based or no-fault divorce, desertion can greatly hurt your divorce case as the other party may argue financial and emotional hardships that resulted from your action.

Moving out could impact your parenting time

The party who remained behind with the kids will certainly gain an upper hand when the issue of custody and parenting time comes up. How so? The math is simple: The parent who stays with the kids is likely to get more time with the kids, obviously. During the child custody case, the judge will probably ask if there was any parenting arrangement prior to leaving. And if there is none, the judge is likely to award physical custody to the parent who remained with the kids. Remember, the judge will try as much as possible to minimize disruption to the children.

Living in the same home while working out your divorce can be difficult, and this is understandable. However, before leaving the family home, it is important that you weigh the merits and demerits of your action.

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*The above is not meant to be legal advice, and every case is different. Feel free to reach out to us at Hoover Krepelka, LLP, if you have any questions. Information contained in this content and website should not be relied on as legal advice. You should consult an attorney for advice on your specific situation. 

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