Many divorcing people ask themselves whether they should move out of the marital home. First of all, if you are in a dangerous situation and the only way to stabilize things and keep yourself safe is to move out, then do so immediately, of course. Nothing is worth compromising your safety. A little later in this article, we tell you what to do and what to take if you feel you must leave the home immediately for safety’s sake.If you have minor
children and wish to obtain either full or shared physical custody, it is best, if it is safe to do so, that you not move out of the marital home.
We had a client whom we’ll call Wayne whose wife had moved out of the home and went to live three blocks away at a friend’s home for the duration of their divorce because, as she apparently told our client, “I can’t wait to get away from you.” Well, this divorce took two years to finalize due to a lot of paperwork coming at us from wife’s attorney, many motions filed, and a packed court calendar.
Though our client’s wife remained involved in their three children’s lives on a nearly daily basis, they never spent the night with her due to a lack of space at the friend’s house. Essentially, they were living with Dad, our client, full time.
When it came time for the judge to make a decision on physical custody, it was easy enough for us to get the judge to grant our client full physical custody because the judge was naturally reluctant to uproot the children from Dad’s house for several days each week. Wife was told by the judge to get her own place and have the children spend her visitation weekends there with her and ask again in no sooner than six months about changing to a shared custody arrangement. Wife lost out on her desired shared custody because she was too quick to leave the marital home.
So, unless you are in immediate danger, it might be best for you to bite the bullet and stay put. If you do leave because it is not safe for you to stay, be sure to get all of your important financial documents and records and take them with you. It’s even more crucial to do this if you are forced to leave the house by the court or the police. If this occurs, you are not likely to be allowed back in until after a court hearing, if at all.
This is a list of most commonly-needed documents in a contested divorce situation:
- tax returns
- paycheck stubs if you are an employee
- 1099s if you are a freelancer or independent contractor
- mortgage loan documentation
- car titles if you own your vehicle(s) free and clear
- bank statements
- brokerage account statements
- loan agreements with family or friends if applicable
- stocks and bonds you have on hand
- credit card statements
- loan documents for any outstanding loans
Take photos of any high-value artwork, collections of value, such as baseball cards, memorabilia, jewelry you can’t take with you (if you’re a man that would be your wife’s jewelry), even high-value clothing such as high-end handbags (Louis Vuitton, etc.)
The next thing to do, if you are moving out and your children are staying in the marital home, is to find a place to live nearby. When the judge decides on physical custody, you are a lot more likely to win shared physical custody if the children’s school and extra-curricular activities’ schedules will not be disrupted by going from one home to the other.
Be sure to have your children spend time with you overnight as much as possible in your new home so that you are already following a semblance of a shared parenting schedule when you get to your day in court. The judge will want to know that the standard of living for the children in your new home is similar to what they are accustomed to in the marital home.
It’s sometimes a tough decision to make, but if there is any way possible, it’s probably best to stay in the marital home until everything has been decided.
What if I ( the wife) am the only one on the mortgage decree and bought the home before the marriage? He has moved out but still comes over to see his son. Legally does he have any rights to the home?
Hello Natasha,
If community property funds were used to make the mortgage payments (such a any money you or your spouse earned after the marriage), your spouse would be entitled to half of any equity in the home from the time of the marriage and up to a divorce being filed. If you owned the home before the marriage and only used funds other than community property (such as an inheritance or funds from a family trust other than with your spouse and that existed before the marriage), your spouse wouldn’t have any legal rights to the home.
What if the house was paid off right after marriage then refinanced does that matter?
And it is a rental can I move into it ?
If the home is rented out to someone, you can’t move into it; it is legally theirs for the duration of the lease.
Hello Cheryl,
what is the question? Does it matter for what?
I have been married for 16yrs , I’ve told my husband I’d like to get divorce . He is pressuring me to leave. If I decided to move out with my daughter. Will I loose my ownership in my house.
Hi Darlene, one has nothing to do with the other. It’s still half your house even if you move out.
My husband is verbally abusive and mentally abusive to me and the kids. He makes it hell to be in the same house with him and he makes it a point to bug me follow me around screaming at me calling me out of my name in front of my kids. Can i just leave the house or should i file court documents before i leave the house. He keeps kicking me out telling me to leave the house.