Considering whether to move out of the home after a divorce is filed? Read this blog first

June 12, 2018

The decision as to whether or not to move out of your marital home after your spouse has filed for divorce from you is one of the most important decisions you will make in your divorce. Issues related to property and custody of your children will be impacted by a decision that emotions can lead you to make without first considering the ramifications of doing so.

If you have not done so already I would recommend that you cycle back and read our blog post from yesterday that introduced this topic and began to discuss some of the disadvantages that you can unfortunately encounter should you decide to move out of your home simply because your spouse has asked you to.

You may think that you are being the “decent” spouse or the “bigger person” but what you have done is put yourself in a position where you are going to have to fight an uphill battle to get back into the house if it is your goal to do so.

More importantly than any property considerations in relation to your home, you are likely concerned first and foremost of what will happen to your relationship with your children. In today’s blog post from the attorneys with the Law Office of Bryan Fagan, PLLC we will discuss how leaving your family home when asked by a divorcing spouse can be disastrous to your attempt to later ask a judge for primary conservatorship of your child.

Want primary conservatorship of your child? Stay in your home

Remain in your home as long as you can if you want to make a credible argument to a judge that you should be the primary conservator of your child. Primary conservator first and foremost means that you are able to determine the child’s primary residence and can collect child support. This is in addition to having rights and duties in some instances that are superior to your soon to be ex-spouse’s.

By leaving your family home, even if you think you are being the nice guy/gal for doing so, you are weakening your argument that you are best suited to be named as primary conservator of your child.

A judge will not think of you as a generous and magnanimous soul for having left the house when you were asked to do so. This is not a rule following competition- at least until orders are laid out by a judge. For now, you are not obligated to leave the house even if your spouse asks you very nicely (or not nicely at all).

Staying in your home allows a judge to see where your priorities are. Choosing to leave your home can give the wrong impression that you have chosen other priorities over your child.

This may be the furthest thing from the truth but in a divorce optics matter. It can look like you value other things more than your children if you move out of the home. Choose wisely what actions you take in the early stages of your divorce.

How will a court determine what is in the best interests of your children?

Texas family law courts make decisions regarding children based on what is in their best interests. To help guide judges the Texas Family Code has factors that a judge should consider when reaching a decision in this area.

For instance, a judge will need to think about what duties you have performed vs. what duties your spouse has performed to this point in raising your children. Which parent will allow your children to have the stability and consistency that they need to flourish as young people?

Which of you will best enhance their ability to succeed in school, in their communities and in your family as a whole? It is difficult to argue that you are better suited in these areas and others when you have voluntarily removed yourself from their day to day life even for a short period of time.

So much of your child’s life will be dominated by having to take time to travel from one home to the other after you and your spouse have divorced. Take a look at a sample divorce decree and you can see just how much of it is devoted to visitation schedules and the travel that is part of these schedules. It is a headache for parents and kids to have to navigate these waters.

If you choose to remain in your home for the duration of your divorce you can do your kids a huge favor by sparing them as long as possible from having to deal with this element of having divorced parents. Your day to day role as provider for your children will be maintained as well which helps your argument that you should be named as a primary conservator.

The bottom line is that moving out you allow your spouse to insert themselves as the superior parent in terms of access to your children. You have ceded this ground not because you are not a good parent or are unwilling to put forth the effort to support your kids, but because you simply may not have known any better.

This would be a terrible reason to lose primary conservatorship of your child and is a reason why I recommend you remain in your home unless there is physical violence occurring or something just as dangerous.

What is temporary tends to become permanent in a divorce

If you decide to leave your home in order to allow your spouse some “space to breathe” you may have done so with the thought in mind that you could quickly get before a judge to have this issue sorted out. Unfortunately, it does not always work out this way. It could be that in delays, mediation attempts and scheduling conflicts that it takes you a month or more to actually see a judge.

When you do, your children may well have settled into a comfortable routine with you out of the home and only seeing them on a makeshift visitation schedule set up with your spouse and her attorney.

What I always tell clients is that what is ordered in temporary orders sets the tone for the remainder of your divorce. Meaning: you are not being in the home could end up being the permanent solution to your divorce concerns in this area.

This almost certainly means you will not be named as primary conservator of your child. A judge will not want to cause any turmoil in your child’s life- certainly no more than your divorce has already created. Expect that even if you present credible, reasonable arguments that a judge will not grant you primary conservatorship if you have been out of the home for an extended time period.

Your new home vs. the family home

Odds are good that your marital home is going to be nicer and more equipped to house children than your new home- be it a single family home or an apartment. In determining what is best for your children a judge will take into consideration which dwelling is more appropriate and better suited to care for the daily needs of your child.

It will again be hard to argue that your home (the one they have lived in their whole lives possibly) is not as good an environment for raising children than an apartment you have been living in for six weeks.

The bottom line: It’s your house too

You and your spouse bought the house together, most likely. You both have contributed towards paying the mortgage and have both contributed to improvements and upkeep. I point this out as a reminder to you that on any level you break it down from this is your house.

Unless your spouse has a court order that allows him or her to do so, you cannot be barred from entering the home. The property inside is presumed to be community property until proven or agreed to as being otherwise. If your spouse changes the locks, dumps your belongings on the front lawn and shuts the blinds you have every right to contact law enforcement to regain access.

Before you find yourself facing situations like this, however, you should contact an experienced family law attorney who can help guide you through these difficult steps.

The Law Office of Bryan Fagan, PLLC: Advocates for southeast Texas families

If you want to have an experienced and client-based attorney’s office at your side in your divorce look no further than the attorneys with the Law Office of Bryan Fagan, PLLC. We exclusively work in the field of family law and offer free of charge consultations to those of you with questions on divorce or any issue in family law. Please contact us today to set up a consultation with one of our licensed family law attorneys.

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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 d ivorce 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, Houston, 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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