In Divorce

Living Situations to Consider When Getting Divorced

A. Will I have to move out of my home once the divorce process starts?

A lot of people think that someone has to leave once divorce paperwork is filed. This is not the case. In fact, many couples continue to reside in the marital home during the pendency of their matter. It is usually in their financial best interest to do so.

B. Can I force my spouse to leave the house once the divorce starts?

Although spouses can continue to reside together, most would rather not. Some want to force the other out. They are, after all, getting a divorce, right? Assuming circumstances do not warrant a protective or restraining order, the only way to “force” a spouse to leave the home is to file a motion asking the court to make it an order that they leave. This is called a motion for exclusive possession. Once filed, a hearing will eventually be held (assuming no agreement is reached beforehand) where the spouse who filed the motion will have to prove to the court reasons to support a finding that it would be equitable or in the best interests of the child(ren) to oust the other spouse from the marital home. The reason(s) have to be compelling. The other
spouse has to be engaging in conduct that is harmful or unbearably disruptive either to the parties or to the child(ren). The fact that a spouse just can’t stand the sight of the other any longer is not going to be enough. It’s not enough even if the other spouse is rude, causes inconvenience, plays mind games, or conducts themselves in otherwise childish manner. Your attorney will help you determine if the motion is worth pursuing.

C. Can I move out of the house once the divorce is filed?

Many people think if they leave the marital home they will be “charged” with abandonment. If you take off without word and no one knows where you are, and you have no contact with spouse or kids and you do not continue to assist with any marital or parental expenses for many months – if you “Got out of Dodge,” then it is possible you will be considered to have abandoned your spouse. The good news is that hardly anyone contemplates doing that. They just want to not continue to reside with the other in the house while a divorce is pending or about to be started. Assuming you are not taking children with you, this is allowed. Ideally, one would discuss this plan with the other spouse, provide the new address and make arrangements for finances and visitation with the child(ren) at minimum. Other considerations would be continued access to the marital home, continued responsibilities for maintenance of the marital home, continued responsibilities for getting children to and fro, actual payment of the bills, how the parties are going to communicate, etc. Your attorney will assist in identifying all issues, communicating, and reducing all agreements to writing which is normally best practice. Now, if you plan on leaving the marital home WITH the child(ren), then you should really consult an attorney first. If the other spouse does not consent, then your actions can result in a lot of extra time, money, and effort, unnecessary displacement of your child(ren) and an overall bad start to your divorce

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