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Should I Move Out of the Marital Home During a Divorce?

When considering moving out during divorce, there is no one right answer that fits every case. The answer will depend on your individual circumstances. Things to consider when making a decision include:

  1. Has there been domestic violence?
  2. Are there children involved?
  3. Do you want to be able to stay in the home during the divorce?
  4. Financial concerns and can you afford it?
  5. Do you want to use any of the property currently in the home?
  6. Will moving out affect my financial interest in the property?
  7. Emotional considerations

Has there been domestic violence?

  1. If your spouse has committed domestic violence, prioritize securing your and your children’s safety. This can involve going to court for a protective order. You can ask a judge to order your spouse to leave the home.
  2. While waiting for this process, leaving the home temporarily might be safest. If your children are at risk, it’s reasonable to take them with you.

Are there children Involved?

  1. If you want your children to primarily live with you, don’t move out without safe arrangements for them.
  2. Don’t leave the marital residence if you seek primary custody/conservatorship of the children in your divorce. Wait until you finish a temporary orders hearing in your case.
  3. From a strategic standpoint, a spouse often loses leverage in the case by moving out of the home. The disadvantage comes even greater if the other spouse remains in the home with the children. The spouse who has moved is literally “on the outside looking in.” That simply is not a good situation to be in during a contested divorce.
  4. Moving out of the marital residence before a temporary orders hearing weakens your case for primary conservatorship of your children. If you leave, you leave the children behind. In Texas, courts usually give the primary conservator temporary exclusive use of the home.
  5. Courts weigh many factors for primary custody, including providing consistency. Staying in the home lets your children remain in their school and bedrooms, minimizing life changes.
  6. Often, the person who initially moves out rents a smaller place due to financial limits. This means less space for the children. The home environment affects custody determination. If you move out and the children stay, you become the visiting parent. The court considers this when deciding custody. Thus, to be the primary parent, stay in the home or take the children with you.
  7. If you move out without the children before settling disputes relating to children , it might delay your arrangements to see them.

Do you want to be able to stay in the home during the divorce?

  1. Once a party moves out, a lawyer may have difficulty getting an order for him/her to move back later.

Financial and property concerns: can you afford it?

  1. A large concern during a divorce include financial concerns. People in the legal community often express this as ‘keeping the ship afloat.’ In other words, making the income that once supported one household stretch to take care of two. This can be a difficult thing to do. This challenge leads some couples to live together during the divorce due to affordability issues.
  2. If the higher-earning spouse moves out, they should be ready for court orders to continue paying household expenses like mortgage and insurance. This could result in the departing spouse facing a less favorable living situation.

Do you want to use any of the property currently in the home?

  1. Moving out leaves the home in your spouse’s control. Unless you take all of your personal belongings out of the house, you will be trusting your spouse to look after your things. In a contentious divorce, this might mean you never see your possessions again or you receive them back damaged.
  2. A spouse who moves out should create an inventory of all property, and photograph important items. The moving spouse should take personal and important belongings, such as clothing and jewelry. It may be difficult to get back in the home after they have left to get anything left behind.

Will moving out affect my financial interest in the property?

  1. While making that decision, keep in mind the person who moves out does not forfeit all claims to any marital equity in the property or entitlement to a division of the furnishings. While you don’t give up any legal rights to the house or contents of the house by moving out, there are legal and strategic reasons why you may want to stay in the house.
  2. The spouse staying in the family home at separation isn’t necessarily more likely to receive the house when dividing property permanently. Texas law mandates the division of marital property in a divorce in a ‘just and right manner,’ which generally means ‘equally’ or ‘equitably,’ implying fairness. This usually means that one spouse will be able to keep the house only if the other spouse receives either money or other property of comparable value.
  3. If you want the home from a legal point of view, remaining in the home gives you two advantages. First, your continued occupancy of the home will give the judge a basis for awarding the home to you at the end of the case. In deciding issues such as this, many times judges look for an answer which will promote stability and keep things as they are. Awarding the house to you when you have continued to reside there provides this stability. On the other hand, it may be difficult to get back in the house and to have it as your property at the end of the case if you have been out. This is especially the case if you have been out for some time.
  4. If the home was purchased during the course of the marriage, then the home is considered community property no matter who is living in the home, or whose name is on the paperwork, at the time of the divorce. Moving out will not affect your financial interest in the property, you will be entitled to share of the equity in the home regardless of where you are living.
  5. While both parties are entitled to a portion of the equity of the home, this does not necessarily mean the home must be sold. Sometimes, one party wants to remain in the home and ‘buy out’ the other party. If both parties are hoping to continue living in the home after the divorce, the person who moves out will have a weaker case. The person who moves out will have to convince a judge to change something, while the person who stayed in the home will just have to convince the judge to keep things the way they are. If you want to keep the home after the divorce, it is important to remain in the home while the divorce is pending.

Emotional Considerations

It may be difficult for you to walk out of your marital home because of strong emotional connections to the home. However, you may find it difficult to live together with your ex under the same roof. Divorce proceedings can take weeks, even months, and living in proximity to your spouse may be very trying. The resultant hostility that may escalate as the divorce proceedings progress.

This is something to consider when weighing whether the resultant savings from living under the same roof is worth having to live in the same proximity as your spouse.

Final Thoughts

In conclusion, deciding whether to move out of the marital home during a divorce involves careful consideration of legal, financial, and emotional factors. Consult with your attorney to understand the implications for your situation and strive to make a choice that supports your wellbeing and legal rights. Moving forward, it’s crucial to approach this decision with clear legal advice and a focus on your future stability.

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