Deciding to move from your home in anticipation of a divorce can be an intimidating proposition. To be sure, going through a divorce in and of itself can be intimidating. However, making big decisions to leave the family home can add to the intimidation factor and open up many possible outcomes and consequences for you and your family. Since big decisions are what we specialize in here at the Law Office of Bryan Fagan, I wanted to share some thoughts on what it means to move before or during a divorce without your children.
You may have wondered whether any circumstances justify moving from your home without your children. Certainly, there are legitimate reasons to feel that it is inappropriate to move during such a difficult time and to leave your children with your spouse. On top of everything else going on in your life, you are a parent. That bond you formed with your children exists for a reason. The idea that you could leave your children behind with an uncertain future can be enough to cause any parent to stay put and see what happens.
On the other hand, despite the tug of your children (literally and metaphorically), you may be leaning towards leaving the home and moving away. Whether the move is across the street or the state you must think through this important issue and determine whether it is in the best interests of yourself and most importantly your children. Deciding without first considering its consequences can be a recipe for disaster.
The reason being is that it is tough to go back and un-ring the bell of going through with a move without your kids. Leaving the house is a big deal in a divorce case even if you and/or your spouse do not think so. Not only are you potentially ceding access and use of the house for the entire divorce to your spouse but there are implications to bear in mind when it comes to your children as well. Remember that your responsibility to parent your children does not stop nor change because of the divorce. How can you balance the pressures of a divorce and your need to parent your children? Read on to find out more and to learn important information about moving out of the family home in anticipation of a divorce.
Basic considerations for moving out of the home at the beginning of a divorce
One of the most important considerations to bear in mind when it comes to moving out of the family house at the beginning of divorce has to do with whether you were the spouse who filed the divorce. If you did file the divorce then your decision to move out is probably going to be intentional. Meaning that you thought through the situation as best as possible and made the determination to leave the house rather than remain. Whether or not this ends up being the best decision for you and your family is yet to be seen. However, you would have had the opportunity to decide and be purposeful about it.
However, you could also be in a situation where the divorce was not filed by you. Your spouse may have surprised you by filing for divorce and you only came to find out through a process server handing you some legal documents. Finding out about a divorce in this manner can be a real shock to your system. Rather than being able to work through the emotions and implications of a divorce, you may find yourself being told by your spouse to move out ASAP. What about your kids? Where are you going to live? What about all your belongings? These are only a few of the questions that may begin to creep into your mind at the beginning of a divorce that was not in your immediate plans.
To start with, you should not jump to conclusions when you are considering a move- for whatever reason. It is best to think as critically as you can about the decision to arrive at a choice that suits you and your family as well as possible. Do not underestimate the importance of intentionality. Even with limited time and resources, you can still make decisions that are well thought out and based on reason and forethought. Do not jump into anything. What we like to tell people all the time is that it is possible to wander into a divorce, but it is nearly impossible to wander out of one and accomplish anything of value in your case. This means that you should be as clear-minded as possible when deciding to move.
Before we even get into the subject of moving without your kids, you need to think about what your options are as far as finding a roof over your head if you do decide to leave the family home. Some of you may have money set aside for a rainy day. Well, I can’t think of a much rainier day than one where you are served with divorce papers. Being told to leave the house by your spouse makes the day that much harder. However, if you have some money set aside for emergencies then, theoretically, that money can be used for a deposit on an apartment or rental home.
If you do not have the money for a deposit for an apartment or other rental home, then you may need to think about the other choices that are available to you if you think moving out of the family house is your best path to take at this stage. Other options include staying with a friend or a relative for a short period while you sort out your next steps. This is not an ideal situation to be in, but the fact is that a divorce is never ideal. You will need to think critically and intentionally at this stage of a case to limit your mistakes and position yourself well for the divorce and eventually your post-divorce life.
Do you have to move out of the family house?
There is no requirement in Texas that you move out of the house because of getting divorced. It may seem like that from the outside but there is nothing in the law or even in a court order likely that would bar you from being able to enter your home. Remember that you have a lease or a mortgage that likely bears your name on it. This means that you have a legal right to utilize your home and take advantage of everything that comes with it. A final decree of divorce may ultimately require the sale of the house. Or you or your spouse may end up receiving the house as a part of the divorce proceedings. Until that point, however, you have the right to use your home.
With all of that said, however, you may want to consider moving out of the house for the time being. One of the immediate factors that you should consider is whether you and your spouse would be able to live under the same roof for the duration of your divorce. For many of you reading this blog post that would be an awkward arrangement that could result in negative results for your family. Even if you and your spouse are being civil with one another right now that doesn’t mean that things will remain that way during a heated and emotional divorce process.
The next obvious consideration for you to weigh when determining whether a move out of the house is appropriate is regarding your children. It can be a tremendously difficult choice for a parent to leave the family home without their children. The circumstances of your case will invariably play a role in helping to determine whether this is a move that you should consider. Violence in the home over and above the typical animosity that many people encounter in a divorce should be a primary consideration. You do not want to put yourself in a position for your children, your spouse or you are in harm’s way. This could have a profound impact on your family in an immediate sense but also from the perspective of your divorce case.
Considerations for moving without your children
It goes without saying that if you are considering a move out of your family house without your kids then something serious must be going on. A divorce is an example of one of those types of serious situations. An experienced Texas family law attorney can help guide you in making decisions about how to proceed from this point forward. Remember that there are emotional, familial, and strategic considerations for you to think about right now. Making a purely emotional decision would not be wise although it is understandable considering the circumstances that you are facing.
From a practical standpoint, you and your spouse need to think about which one of you can afford to move out. This matters for a couple of different reasons. Just because you are going through a divorce does not mean that your mortgage is no longer due each month, for example. Being able to make sure that you have your mortgage paid each month is important for many reasons- not the least of which is that it is where your children live. The last thing that you want to do during a divorce case provides more turmoil and upheaval for your children. Making sure that the mortgage is paid each month is vital for this reason.
Keep in mind that if you are the primary breadwinner for your family then you would likely be responsible for paying the mortgage during the divorce as well as for paying rent for any apartment or home that you would be leasing. This is where being intentional is very important for your family and your well-being. If you cannot reasonably afford to pay rent and a mortgage simultaneously then you should strongly consider remaining in the family home. There is no guarantee that the obligation to pay the mortgage will shift off your shoulders during the divorce. If your spouse is a stay-at-home parent or otherwise does not earn much income, then the obligation to pay the mortgage would likely fall onto you.
Another important financial consideration for you to think about is that nothing which happens in the divorce case will absolve you from the responsibility to pay your mortgage. When we think about a family court and a final decree of divorce the judge in the black robe sitting upon the bench may have the power to do just about anything he or she wants. This is true to an extent. However, the terms of your divorce cannot supersede the contract that you have with your mortgage company to pay your mortgage each month. Even if the divorce terms state that your spouse receives the house, for example, until there is no mortgage with your name on it you have a responsibility to pay that note as agreed. You cannot send notice to the mortgage company or mortgage servicer saying that you are going through a divorce.
What may end up happening in your divorce is that the house is either ordered to be sold and the profit split between you and your spouse. In this day and age, you and your spouse almost surely have some equity in the home. You would need to negotiate the terms of how to select a realtor, how to list the home, work together on accepting an offer, and any details associated with closing and moving out. However, selling the family home in a divorce is an option to think strongly about. Many families struggle with this decision from the perspective of what the change in living situation will do to their children. You should think about this, as well.
Finally, some families decide to have one spouse remain in the home after the divorce. If it is you that ultimately does not remain in the family house then you should be aware of a few circumstances that are relevant to this discussion. For one, just because you have moved out and the final decree of divorce names your spouse as the owner of the home does not mean that you have zero responsibility regarding the home or its mortgage. As we have already discussed your name appears on the home mortgage and you are responsible for paying it off each month. Nothing in the final decree of divorce will change this.
From a strategic perspective, there are a few ways to combat this situation. Within the final decree of divorce, you could negotiate to have included in the document that your spouse will need to apply for a mortgage refinance within so many days of the divorce being final. A mortgage refinance is not guaranteed, however. Your spouse could apply to refinance the mortgage but may not be approved due to a low credit score, lack of consistent income, or for any other reason. If you do not think that your spouse would qualify for a mortgage refinance, then you should think twice about agreeing to allow him or her to stay after the divorce.
The other legal mechanism that you can put into place to protect you in this situation would be to sign a special warranty deed that transfers your ownership interest in the home to your spouse. Next, your spouse would sign a deed of trust to secure assumption. This document would allow you to foreclose upon the house if your spouse is unable to make payments on the mortgage. While this is not an ideal position to be in after a divorce it is better than nothing, certainly. It will offer you protection if your spouse fails to live up to their end of the bargain as far as the mortgage is concerned.
What about the kids?
When it comes to moving out with your children there is the issue of primary conservatorship to consider. If you move out of the house without a court directing, you to do so then it can appear to a judge that you are less interested than your spouse in caring for your children daily. This may not be, and probably is not a fair characterization. However, it is an approach that many judges take in cases like yours. Do not underestimate the appearance of your leaving the family house early in a divorce. You may want to consider these implications as you move forward in your case. Staying the home may be uncomfortable but it can be to your advantage both if you want to keep the house after the divorce and if you want to be named as the primary conservator of your children.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person at our three Houston area office locations, over the phone, and via video. These consultations are a great opportunity for you to learn more about the world of Texas family law as well as how your family’s circumstances may be impacted by the filing of a divorce or child custody case.
Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.