Should You Move Out of the Marital Home?

If you and your spouse have decided to file for divorce, there is a strong possibility that things aren’t exactly stress-free on the home front.

Whether your marriage is ending because one of you had an affair, because you have drastically different parenting styles, because you fight too much, or because you’ve simply grown apart, you are both probably eager to go your separate ways. Not so fast.

When couples decide to divorce, they must put thought into their living arrangements during the separation and while the divorce proceeds through the courts.

There are two main concerns related to moving out of the family home during divorce: the first is whether moving out will affect a spouse’s claim to the marital residence, and the second is whether moving out can adversely affect a parent’s claim to child custody, or their battle to obtain primary custody of their children.

How Moving Out Affects Property Division

Southern California has one of the most expensive real estate markets in the United States. With that being said, there is a strong possibility that your marital residence is the most valuable asset you have acquired during your marriage, especially if it’s increased in value since you bought it.

It’s understandable why divorcing spouses would worry that moving out would negatively affect their claim to the marital residence. If you’re concerned about abandoning your home, know that California is a community property state, which means all marital property is subject to a 50/50 split regardless of who is on title, who earned the money, or who is living in the marital residence.

As long as the home was acquired during your marriage, then it’s subject to division regardless of which spouse remains in the home while the divorce is pending in the courts.

Child Custody is the Real Concern

The real concern with moving out is child custody. If you’re concerned about getting custody of your children, being quick to move out of the family home can adversely affect your child custody battle.

Until you ask the court for a temporary child custody order, “abandoning” the family home is sending a strong message to the judge that not only is your soon-to-be-ex qualified to take care of the children, you’re not too concerned about being involved in their daily lives.

You can avoid sending the wrong message to the judge by establishing a temporary custody schedule that ensures that you (the parent leaving the marital home) have frequent and continuous access to your children, establishing the status quo that you intend to be actively involved in raising your children.

If living under the same roof is simply unbearable at this point, your divorce attorney could argue that moving out would reduce the conflict in the home, which would be better for your children’s well-being.

Whatever your situation, we advise that you contact Cutter & Lax, Attorneys at Law to discuss your options during a consultation!