Should I tell my spouse to move out of the home during a divorce?

Last week a prospective client walked into our office and asked for some advice regarding the divorce process. She had made up her mind that it was time to file for divorce against her husband but was unsure how to go about it.

Her main concern had to do with whether it was a good idea or not to have her husband (and the father of her kids) continue to live in the marital home or to ask him to leave in the divorce papers. While there is no "one size fits all" piece of advice that can apply equally to all inquiring spouses there are some factors that are worth consideration across the board.

Keep your children in mind during the divorce

As touched on in our introductory paragraph, whether there are children involved is perhaps the most important consideration. If your position is that your children need to continue to live in the home- and with you as a result- then it may be in your best interest to request that you be given exclusive use of the home.

This is important strategically because what occurs at the beginning and middle of a divorce, such as you remaining in the home and your spouse living elsewhere, is what tends to end up happening ultimately.

Temporary Orders

In the timeline of a case, a temporary orders hearing is the first opportunity for both parties to appear before the judge that can potentially decide their fate, post divorce. As it pertains to asking your spouse to move out of the home prior to this hearing, if your spouse actually does move out- and your kids remain with you- that is a huge hurdle for your spouse to overcome in the hearing.

Simply put- since your spouse has moved out it looks like they are willingly leaving the children behind and that is something that a judge will most likely not look highly upon. This alone can cause a judge to name you the "primary" joint managing conservator which allows you to choose the residence of the children in addition to having the aforementioned exclusive use of the home.

Finalizing the Divorce

As a case moves towards its conclusion, the fact that you have remained in the house and your spouse hasn't can cause a judge to more strongly consider awarding the home to you in a trial setting. Should you and your spouse settle the case prior to a final trial then it will still give you a strategic advantage that many opposing parties will not risk going to trial.

The reason being that the presumption is so strong that the party that has vacated the home will not be awarded the home in trial, most people in this scenario will not want to wager additional time, energy and attorney's fees to find out if they can overcome those odds.

Other Considerations

Other factors are important to consider as well when weighing whether to ask your spouse to move out of the home. There are emotional ties that each person living in a house will have that go beyond the structure itself. Memories and nostalgia, even if recent times have been bad, will cause most people to fight hard to remain in the house even if you kindly ask them to leave.

The attorneys with the Law Office of Bryan Fagan handle divorce cases of all varieties. Contact our office today to learn more about how we can effectively advocate for your rights.


If you want to know more about what you can do, CLICK the button below to get your FREE E-book: 16 Steps to Help You Plan & Prepare for Your Texas Divorce

Other Articles you may be interested on regarding the Marital home include:

1. Do I have to move out of the Marital home during a divorce?

2. Steps To Take Before Moving Out of the Marital Residence During a Divorce in Spring, TX

3. Should I move out of the marital home during a divorce?

Law Office of Bryan Fagan | Houston, Texas Divorce Lawyers

The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.


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Law Office of Bryan Fagan
Spring Divorce Attorney
Located at: 3707 Farm to Market 1960 W.,
Suite 400,

Houston, TX 77068
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Phone: (281) 810-9760
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