Who Gets To Stay In The House During A Divorce?

With the exception of when a restraining order is in play that orders a person to stay away from their property, child, children, or spouse, anyone can legally keep living in their house that they either own on their own or co-own with their spouse. Read on to learn more.

People have different comfort levels and obviously many will choose to leave to prevent further marital problems. But if you are on the title or lease to the property, you have the right to stay there from a legal standpoint as long as there is no evidence of harassment, domestic violence, or criminal activity.

Moving Out Can Be A Mistake

When a man moves out, he may have just opened himself up to problems especially if papers are yet to be filed – this is, even more, the case when the man has a child or children. It is vital not to leave on a voluntary basis as that can sometimes be seen as abandonment – even if you think your reasons are justifiable. It may be suggested it is a good idea to leave to reduce the amount of stress to a child or children by your spouse. They may also promise ample parenting time but none of this can be guaranteed and if you are on the mortgage or lease, you have a right to stay at your home.

Even with a protective order in play, there is far more potential for conflict by removing yourself from the home as well as the breakdown of family routine than can impact a child or children.

When you leave the home on a voluntary basis it can send the message to the court that daily interactions with your child or children are not a high priority for you. However, it looks particularly good when you can show the court how much you are involved in the lives of your child or children and how that is the main priority by staying and having the other parent leave.

When you leave the home that may carry over into court orders while the divorce case is getting underway and may work against you if the present arrangement works when shown to the court. This may result in you paying far more in child support and having limited access to your child or children.  Put simply, stay put, until your lawyer says otherwise.

Comfort And Safety

If you are at risk of domestic violence in the home, leaving maybe the safest thing to do and that may include taking a child or children with you. But a temporary custody order must be obtained from a court as soon as possible, so kidnapping accusations cannot be leveled against you. In situations where there is no violence, it is still of primary importance that child custody be foremost. It may be necessary for a court to approve parenting time when a parent moves out. As soon as this can be done the better it will be for your future parenting prospects.

Custody Of A Child Or Children

In instances where a child or children has remained in the family home, it increases the chances the Judge will maintain that position to prevent disruption. This can be avoided with a parenting agreement written by the parents before one of them leaves, the establishment of a schedule for parenting, and the agreement that no parent is giving up their rights.  The parenting agreement however must then be submitted to the Court for the judge’s signature to be binding and enforceable.

My Spouse Wants A Divorce Should I Move Out?

When possible stay in the marital home, in the long run it increases your likelihood of the best possible outcome. If you can find a way to coexist it really is for the best. Move to a new room, avoid un-needed interactions, and keep being part of the lives of your child or children.  Do not bring new romantic partners to the home, this confuses the children and causes your current spouse to likely escalate the litigation.

Source: Cordell, Joseph E. “The #1 Divorce Mistake Men Make.” HuffPost, HuffPost, 19 Aug. 2014, www.huffpost.com/entry/moving-out-after-divorce_b_5510895.