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

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

There is no one right answer that fits every case and 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 say 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 then you should do whatever is necessary to secure your and your children’s safety. This may include going to court for a protective order and asking a judge to order your spouse to move out of the home.

  2. While waiting for the above process to take place leaving the home temporarily may be the safest thing to do. If your children are at risk taking them with you from the home is reasonable.

Are there children Involved?

  1. If you believe your children should reside primarily with you, it is generally not a good idea to move out unless you have adequate and safe arrangements for your children to go with you.
  2. If there are children involved in your divorce and you are seeking primary custody/conservatorship of the children, do not move out of the marital residence until such time that you have concluded a temporary orders hearing in your case.
  3. From a strategic point of view, for one reason or another, a spouse seems to lose leverage in the case when 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. If you move out of the marital residence prior to a temporary orders hearing and the children remain there with the other parent, then you have weakened your position in the case for primary conservatorship/custody of your children. If you leave the house you are leaving the children. Courts in Texas generally award temporary exclusive use of the marital residence to the parent that is appointed as the primary conservator of the children.
  5. While numerous factors are considered in determining which parent should have primary custody, the ability to provide consistency is an important factor. If you remain in the home, your children will be able to stay in the same school and same bedrooms- the change in your children’s lives will be minimized by staying in the marital home.
  6. The person moving out initially is often forced for financial reasons to rent a less spacious residence, with less room for the children. The home environment can also play a role in a custody determination. Additionally, if you move out while the children stay, you will have created a situation in which you are the visiting parent. The court will look at the decisions you make, and if you have voluntarily left the children behind, this will be a consideration. Therefore, if you want to be the primary parent it is important to stay in the home or bring the children with you.
  7. If there are any disputes relating to children and one parent moves out without them before reaching an agreement regarding contact, there may be a time lag before arrangements are in place for that parent to see the children.

Do you want to be able to say 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 and can you afford it?:

  1. A large concern during a divorce include financial concerns. This is often expressed in the legal community 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. For this reason some couples continue living together in the family home because they cannot otherwise afford to support a second household.
  2. In some circumstances a spouse who is the higher earner and who move out of the family home must be prepared for the possibility that a Court may Order them to continue paying many of the household expenses, including the mortgage and insurance payments. If this happens the spouse who leaves may end up in a less desirable 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. If the divorce is contentious, this may mean you may never see your possession again or you may get 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 fact that one spouse stays in the family home at separation doesn’t necessarily mean that spouse is more likely to receive the house when the property is divided permanently. Texas law require marital property in a divorce to be divided in a “just and right manor” which generally means “equally” or “equitably,” meaning fairly. 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 of your spouse.

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Law Office of Bryan Fagan, PLLC | Houston, Texas Divorce Lawyers

The Law Office of Bryan Fagan, PLLC 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, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC 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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