Leaving a Matrimonial Home Before a Divorce
By A.M. Hill
Updated March 30, 2020
A divorce is often a highly emotional event; continuing to live in the same residence can cause the stress to skyrocket. While it is understandable that you might want to move out of the marital home while the divorce is pending, leaving can have serious consequences. Before you pack up and go, consider how moving out can affect the way your divorce unfolds.
Effect on Child Custody
If you have minor children, moving out of the marital residence can compromise your custody rights. Voluntarily leaving your children in the home with your spouse essentially tells the court you believe the other party is a competent parent. This gives your spouse de facto custody -- physical possession of the children. Because courts tend to favor keeping the children in the marital home, the judge is more likely to grant your ex temporary custody during the divorce. Furthermore, because both parents have equal rights to the children, it is likely you you won't be able to remove them from the marital home without a court order or your spouse's consent.
Exclusive Possession of the Home
Voluntarily moving out can also prompt your spouse to file a motion with the court for temporary exclusive possession of the marital home. If the court grants the motion, you will be barred from returning to the house while the divorce is pending. On the other hand, if your spouse is the source of the difficulty, you also have the option of filing this motion. The court might order your spouse to leave and allow you to remain in the home if you can show she is abusive or creating an environment unsuitable for children.
Trusting Your Spouse in the Home
Moving out leaves the home in your spouse's control. Because it might be impractical to move all of your personal belongings out of the house, you are effectively trusting the other person to look after your things. If the divorce is contentious, your spouse might take out her frustrations on your property. In some divorces, the couple must sell the marital residence. However, if you are not present in the home, you may lose control over the real estate process and give your ex an opportunity to delay the sale or even damage the house.
Walking away from your home before the divorce is final can also hurt you financially. The court might enter temporary orders requiring you to pay spousal or child support. You could also be ordered to contribute to the family home's mortgage. If you rent an apartment or buy another residence, you may find yourself in the position of supporting two households on one income. Before you move, consider how it will affect the major issues of your divorce and evaluate whether the positives of leaving outweigh the potential negatives.
- Young Women's Christian Association: A Woman's Guide to Custody, Access and Support of Dependent Children
- Dads Divorce: Ask a Divorce Lawyer: Will It Hurt Me in Divorce Proceedings if I Move Out?
- Womans Divorce: The Marital Home and Divorce
- Rochester Family Lawyer: Divorce and Exclusive Possession of Marital Residence During Pendency of the Action
- Johnson Sauer: Who Has to Move Out?
A.M. Hill has been a licensed attorney since 2004. Her practice areas include family law and divorce, probate and estate planning and bankruptcy. Hill holds a Juris Doctor from the Cleveland-Marshall College of Law.