The gut reaction for many people who are going through divorce is to leave the home they share with their soon-to-be ex immediately. While the temptation is obviously great and no matter how easy it is to justify, convincing yourself that moving out will definitely cut down on conflict and should certainly make the divorce easier; be sure to stop, think of the ramifications and consult your attorney before you make such a major decision. In certain situations, leaving the home can severely hurt your case. There are several important factors to consider before you pack up and move out, on both the financial side and dealing with custody if you have children. For most marriages, the marital home is the largest asset. As long as the home was purchased while the couple was married, it is generally considered part of the marital estate and the value should be split. This may make it feel safe to leave, since so long as your name is also on the deed and mortgage, you don’t risk losing out on your share of the value in the home.
However, moving out prematurely can lead to other financial complications. If the primary earner (or whoever pays most of the utilities, mortgage and bills) for a household is the one moving out early, some states can institute a “status quo order.” This requires the party to continue paying the marital bills as they did before the divorce, which could lead the person to pay two sets of bills on the same income as they did for one. On top of legal fees, this can be a devastating financial blow that is completely avoidable if you just find a way to continue living in the marital home while the divorce is under way. Additionally, problems are compounded significantly when children get involved. When you are living in the same home, you have daily interactions with you children, but when you move away, you inherently have less time with the kids. It is imperative that you have an agreed upon, and preferably court ordered, placement schedule established prior to either party moving from the residence. Without an official schedule, you could wind up in a situation where the first person to daycare or school gets the kids; which is a horrible position to put your kids. You are stooping down and playing dirty, but it becomes necessary just so you can see your kids. Lacking scheduled and evenly split time with children can also lead to expensive payments and issues gaining fair custody after the divorce. If the parties do not agree on a temporary parenting plan and one party moves out of the house, they risk being denied parenting time, which will end up being a costly battle. Additionally, they can frequently end up stuck with child support payments before the divorce is finalized because they have less overnight time with the kids.
It is fairly common for someone to try and stay with friends or relatives while the divorce is being processed, that way they do not have to spend money renting another apartment or home. But this can be problematic if there isn’t enough room for the children to stay the night. Once again, the person who moved out may not be able to exercise overnight stays because they don’t have enough room, which could hurt their chances for receiving equal custody and require them to pay child support unnecessarily. This can also trap them in the situation where they cannot escape: Now that they are saddled with support payments that could have been going toward a big enough apartment for a 50-50 custody split, they cannot afford their own place. In most situations, it is safest to try and stick it out in the marital home. You won’t lose access to your possessions and records, you have already lived with your spouse for however long and it will be a relatively short time until you can securely leave once the divorce is finalized. Besides, maintaining contact and communication may help with negotiations to settle the divorce faster. And if you do decide to leave, definitely consult your attorney and make any custodial or financial preparations before taking that step out the door — it could save you a lot in the greater scheme of things.
One of the very first steps guys make during the divorce process is often their biggest mistake. Your wife tells you she wants a divorce. You’ve been fighting constantly for months, and while you’d love for this to work, you’ve also reached your breaking point. It would probably be best for all parties involved, kids included, for you to pack your suitcase and go stay somewhere else for a few days, right? Even you agree it’d be healthy to get out of this environment. While common sense might tell you that this is a good idea, this decision can often do more to derail your divorce case than anything else.
First and foremost, moving out can cripple your chances of gaining custody of your children. You need to know that having moved out, they may have limited the available strategies and increased the necessary effort and expense in pursuing custody. When determining custody, courts across the United States use some variation of the “best interests of the children” analysis. A court considers a number of factors when making this determination, including parental involvement. Generally, children remain in the marital home during the divorce process. So when you decide to leave, you’re immediately limiting the parenting time you’ll have with them. It also becomes easier for your soon-to-be ex to cut off access to your kids. Before long, a new status quo is established that could be transitioned into a temporary court order that will last until the divorce is settled and can potentially affect the final decree. At that point, the only way back in to the house is to prove that you are the primary caregiver of the kids or an equal partner with your wife in parenting, which can be difficult to prove in court. Since the divorce process can last months, or even a year or two, this “temporary” arrangement can last a lot longer than you might have anticipated. If the arrangement has been in place for some time when the judge goes to decide who gets the kids, they might decide that everything seems to be working and see no reason to change it.
Even if you don’t have children, moving out during the divorce can have costly ramifications. A divorce in and of itself can be one of the most expensive decisions you ever make that can affect your finances for years to come. Before and during divorce, it is nearly impossible to estimate how much everything is going to cost you. By moving out of the marital home, you’re potentially adding even more to your financial burden. If you are the primary earner in your household and you decide to move out while the divorce is pending, the court might require you to continue covering your wife’s living expenses as well. Some states can authorize a “status quo order,” which requires the party to continue paying the marital expenses as they did before the divorce. If you move into a new home or apartment, that means you’re going to be doubling your living expenses by maintaining two households. And if your spouse has a lower paying job, you could be ordered to pay her temporary spousal support so she can maintain the comfortable lifestyle she is used to.
Returning to the Home
While laws vary by state and jurisdiction, there is a chance that it might not be too late to return to the home if you’ve already left. In many states, once one party has filed for divorce and served the other party, the case is frozen and the people and property must stay in the same place until the case is settled. If you’ve yet to be served, however, then both parties are presumed to have equal access to the residence until the court says otherwise. That means you have the right to return to the home even if you already left. If this is the route you choose to take, be careful about reentering the home. Don’t barge back in like a king, but try to go back when no one else is around to avoid causing a scene. If at all possible, try to naturally resume the roles you each played before you left. There’s a chance your wife will have changed the locks on the house. In that case, you can call the police. They’ve likely dealt with issues like this and might help you back in like a homeowner who accidentally locked himself out of the house.
Living with your Spouse
Unfortunately, while it might benefit you legally, remaining in the home with your wife during divorce can be extremely unpleasant, particularly if the breakup is a contentious one.
How do you coexist?
If at all possible, try to have a calm and mature talk with your wife about the situation. Let her know that you intend to stay in the home until the divorce is final and that you want to do whatever you can to make the situation as comfortable as possible for you both. It’s in yours and hers best interest to avoid constantly fighting, especially if kids are in the house. Try to come up with a fair and balanced budget to determine who will pay for various household items and divide the bills up proportionally to your incomes. Respect each other’s personal space and try to establish a routine that you’re both comfortable with. This is only a temporary arrangement so you both should try to make the best of it. While attorneys recommend doing whatever you can to stay in the home, situations could arise where you feel it is worth the risk to leave. When a divorce turns ugly, a spouse will go to drastic measures to force the other out of the house. Your wife might start so many arguments that she finally pushes you past your breaking point and you feel you just have to leave. It also is not uncommon for one party to blatantly lie about domestic abuse. Emergency protection orders, which are used to forcibly remove one party from the home to avoid the risk of mental or physical abuse, require a very low burden of proof and are often utilized as a tactical weapon to get a leg up in the divorce proceedings. Rather than battle those false claims, you might feel it is best to leave and avoid that situation entirely. (Although you should consult with your attorney before doing so).
First and foremost, make sure you have copies of all financial documents that could be relevant to your case. This includes tax returns, pay stubs, credit card statements, mortgage documents, etc. If you lose access to those documents, they can still be recovered through the discovery process, but that will add to the cost of your case. You’ll also need to take an inventory of the contents of your home through photographs or video. Make sure all valuables her jewelry, your baseball card collection, etc. – are documented. Once you leave the house, your wife has possession of everything in it. You don’t want any of these items to suddenly disappear during the divorce process. Without photographic or video evidence, it can be hard to prevent your wife from taking whatever she wants before the marital assets are divided. Finally, when deciding where you are going to live in the coming months, keep your kids in mind and how that decision will affect your odds of getting custody. If you hope to remain in their lives, you’ll probably need to live nearby and in the same school district. If you want them to live with you, you need to be able to provide them with similar living conditions that they are used to. That means providing a stable, clean, and comfortable environment and not just crashing on your buddy’s couch. It’s understandable during this time that you just want to escape and start the next chapter of your life as soon as possible. But odds are you’ll be better in the long run staying in the marital home until your divorce is finalized.
One reason many people give for not wanting to move out is that they fear that they will be “abandoning” any claim to the marital home. You do not give up your legal right to be awarded the marital home in the divorce if you move out beforehand. That said, courts are generally inclined to preserve the status quo in divorce cases. So if you want to live in your marital home, but you move out during the divorce, it’s somewhat less likely that the court will turn your spouse out of the home and reinstall you there. If you have kids, there is another reason to stay put if you can. Most of the time, the parent who stays in the marital home stays there with the children. If you leave, as a practical matter, you may end up seeing your children less during the divorce, and possibly in less comfortable circumstances. And, of course, if you are seeing your kids less during the divorce, there is a possibility that the court will continue whatever pattern you’ve established after the divorce. Last, but not least, is the financial burden of moving out of the house during your divorce. If you move out, you will probably need to spend money on housing, unless you move in with family members (which may be less-than-ideal). Just because you have to pay for a new place, however, doesn’t mean you are going to get out of paying for the old one. And if you are the primary breadwinner, you may wind up paying the mortgage and utilities on a place you don’t get to live in. If that seems like a bitter pill to swallow, you may want to dig in your heels and stay put.
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It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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