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Is Moving Out an Essential Part of the Divorce Process?

This article was written by Hance Law Group associate attorney Jonathan James.

When a couple decides to get divorced, it’s a move that’s sometimes accompanied by one spouse moving out of the house. It makes a certain amount of emotional sense to do that – you’ve decided to not be together as a couple, and it can be painful to be around that person. If it involves an affair or some other hurtful revelation, it can also involve anger, and proximity to one another under the same roof can create friction and lead to fights.

But it doesn’t make the best legal sense to do so – sometimes, a spouse’s decision to move out of a shared primary residence can have implications on how a judge determines who gets the primary residence in the end. It’s always my advice to check in with your divorce lawyer before making a decision to move out.

And, if it’s a primary residence that you and your spouse share, neither of you have to leave unless there’s a hearing in which a judge determines who stays and who leaves for the duration of a divorce case. You might be upset with your spouse, and you might want him or her out of the house, but it will take a hearing (and a judge finding in your favor) to achieve this.

If the couple has children, the hearing will factor in the convenience of children, and will typically favor the convenience of children over the convenience of adults in the ruling. Another important factor is the availability of alternate housing to each spouse – for example, if a husband’s family owns a vacation rental property near the primary residence, a judge is most likely to rule that the husband should move out since he has an obvious place to go.

If there are no available rentals, but one spouse has family who lives in town and the other spouse’s family lives in a different state, the judge might lean toward making the spouse with family in town move. A judge will also factor in if one spouse makes more money than the other, and thereby has more means to rent a residence for the duration of the court case.

There’s also a third option a judge can take, which is most likely if parents have a 50/50 parenting schedule or something close to that. It’s called “nesting” – the children stay in the primary residence 100 percent of the time. During the mom’s parenting time, she stays with the children in the primary residence while the dad stays in a second, temporary residence; when it’s dad’s turn to be with the kids, he goes to the primary residence and the mom stays in the temporary residence.

(Obviously, this isn’t an arrangement that will carry over after the divorce, but it’s a good temporary solution when the primary residence’s ownership is in dispute but you’re trying to make the divorce process less disruptive for the kids.)

If a couple has no kids, the hearing often comes down to who is less financially inconvenienced by moving out.

There’s one important exception to this – if your spouse has been physically violent to you, and you believe that it might happen again in the near future, you can request the Court sign what’s called a Family Violence Protection Order (FVPO). It does require a sworn affidavit from the applicant about past and imminent future violence, and though the spouse doesn’t have to be there for that, the courts will follow up on the temporary protective order with a hearing involving both spouses within 20 days of the initial order. A restraining order cannot normally have the effect of removing someone from his or her primary residence; the FVPO (which is more difficult than a restraining order to obtain) is needed to offer a spouse the necessary protection in this case.

Safety trumps everything, of course, and sometimes moving away from the primary residence temporarily is the right choice. I had a case recently where a woman I was representing moved out with her children, and I was able to get her back into the primary residence following the hearing – so you’re not necessarily giving up your right to stay in the house if you do leave.

Still, though, you should definitely call your lawyer before you leave your home, regardless of what’s driving you to make your decision. He or she will be able to advise you on how it might impact your case, as well as what legal options you have available as you move forward in your divorce.