Family Law

Housing Issues During Divorce: Should I Move Out of Our Jointly Owned House or Stay?

By Joseph Pandolfi, Retired Judge

Once a divorce is underway, the question of which spouse is going to leave the house is usually one of the first issues to come up. Tension in the household has probably been building for some time, and once one spouse actually files for divorce, the emotional strain tends to skyrocket. It’s not a healthy situation for any family member, but if you’re the one who’s thinking of moving out, there are things you should consider before packing your suitcases.

You Probably Don’t Have to Leave, But Staying Isn't Really A Great Idea

If your spouse asks you to leave the house, you don't have to agree to it if you own your home jointly. As a co-owner, you have as much right to stay in the house as your spouse does. The only way that you could be forced to vacate your home is if a judge orders you to leave. And realistically, that would only happen if you were found guilty of domestic violence, or if the judge determines that your presence is somehow detrimental to the safety and wellbeing of your spouse or children.

Having said that, unless you live in a huge property where you can avoid contact with your soon to be ex, it's usually a terrible idea to continue living together during a divorce. The best approach is to come to a written agreement about who's moving out and simultaneously agree on major custody and financial issues. Staying in the same space will only increase animosity and may even create more conflict in your divorce. A dispute over who gets to keep the house can be costly if you can't work it out.

Will Moving Out Affect Custody or Parenting Time?

If you have minor children, you should be considering custody issues when deciding whether to vacate the home. Leaving your children behind, without having a firm written agreement as to custody and parenting time (visitation), could create a problem. A judge could view your actions as an indication that your children are only a secondary concern for you, and this could weigh against you, particularly if custody is contested in your case.

And if you do have a “temporary” custody and parenting agreement in place where the kids stay in the family home, it may become permanent—whether you like it or not. This could occur if a judge ultimately determines that changing the current arrangement would be too disruptive for the children, and orders that it remain in place.

The bottom line here is that leaving your home could impact your status when it comes to your kids. So before moving out, speak with your lawyer to see exactly how this could affect your case under your state’s laws. (Learn more about custody decisions here.)

Can My Spouse Claim I Deserted the Marriage?

In some states, courts still allow “fault-based” grounds (reasons) for divorce. For example, New Jersey recognizes desertion as a ground for divorce; this is where one spouse willfully abandons the other, severs all ties, and fails to support his or her spouse or children. Typically, you have to be away from the home continuously for a specific length of time (usually at least a year) to use this ground for divorce.

It's important to note that moving out as a result of a separation or divorce, or in order to flee physical or mental abuse, will not usually constitute desertion. (Read our article on desertion grounds for divorce for more information.)

Discuss these issues with your attorney in advance so you can avoid a possible desertion claim.

Leaving Your Belongings Behind

Typically, when a divorcing spouse leaves the marital home, it’s not a particularly well-thought-out process. You pack your personal belongings and get in the car. You don’t worry about the rest of your property very much, because you assume you’ll be able to retrieve it whenever you need to.

But you should be aware that once you’re out, your access to the house may be limited. Before you move out, it's best to at least gather important documents (or make copies) and possibly come to some agreements about personal belongings, big ticket items, and other property with sentimental value before you leave the home.

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