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Should I Move Out Of The Family Residence

While My Divorce Is Pending?

Many people think that once the papers are filed, the court will order one or the other of the spouses to move out – perhaps to vindicate one or punish the other -- but this is the movie version, not the real one.  In the absence of any violence or harassment, neither party will be ordered to vacate the family residence. Nevertheless, once the decision to dissolve the marriage has been made, it is generally no longer pleasant for soon to be ex-spouses to continue living together.


You, personally, may want to move out so you can “move on,” start your new life, alleviate stress, or be “the better person,” or, perhaps, to just temporarily create a cooling off period – all of which are good reasons.  But the decision of whether or not to move out has legal and strategic consequences down the road which one should consider.  It involves all the core issues which may have lasting effect in the outcome of the case.


The threshold questions for one to determine are: What it is that you want in the long run, what is the end result you want to obtain?  In the property division, do you eventually want to be awarded the house?   If you move out for the purpose of a cooling off period, will you expect to come back afterward?  If there are children, there are additional considerations which may affect custody and visitation.  And then, of course, with any and all of these questions, driving the decision will be the economic considerations, both immediate and long term.


Economic.  Can you afford to move out?  Is there enough income to support two households?  If the move-out is to occur right away, this obviously depends on the available incomes, and one should be able to add up the numbers to find out.  Thus, it is the same old question, “what one wants” vs. “what one can afford.”


Eventually, however, there will be two households, so this would be the time to start planning.  What adjustments must be made, which often means –  what cuts must be made?  It is not surprising that once the trust and reciprocity is gone from the relationship, the spouses are less likely to see eye to eye on these economic decisions.


This is often much more complex and may require considerations and foresight with which one is not often prepared at the beginning of the case.  On further consideration, a departing/paying spouse may acquire advantageous “credits” in the eventual property division, by continuing to make the payment on the family residence. Competent advice will be indispensable.


In fact, both spouses will be expected to continue to make rational, appropriate, financial decisions throughout the long haul of the proceedings, notwithstanding their immediate comfort zones, their perceptions of having been “wronged,” or their prospects for their new lives ahead.  It is a tough course to steer, and competent help and advice will be paramount to making it through.


No turning back. Once one moves out of the family residence, one will likely be excluded from returning to the family residence.  Even if it is an amicable, joint decision at the time, the one who moves out usually cannot, at a later date, unilaterally decide to return – notwithstanding that, yes, he/she still owns 50% of the house.  Both spouses will have to agree on the return, if it is to happen, and if they do not, it is not likely that any judge will order the disagreeing spouses to resume co-habitating. Once one moves out, one should expect that that is the way it will stay.


Property division.  The marital property must be divided equally, not necessarily item by item, but the monetary value of the property awarded to each should be equal.  Judges often look for a resolution that will be the least disruptive and which will promote stability.  Awarding the house to the one who is already living in it accomplishes this.  This is not always the case but there is no compelling  rational to put one spouse out, just to give the asset to the other spouse.  Thus, unless the parties agree otherwise, the house will likely be awarded to the one who is living in it.  And the other spouse will be given other property of a comparable value. One must consider this: This “other” property could be bank accounts, or retirement accounts, or other more liquid property.  One must consider well whether or not it is to his/her advantage to end up with the house or the more liquid assets.  Sometimes it is an emotional decision to be able to stay in the house, but what one must answer is what really serves you best?


The right decision may depend on factors that are not immediately obvious, or which are specific to one's own needs -- which makes competent advice all that more important.  For example, one spouse may benefit by being awarded the house because he/she will not be able to qualify for a loan for another property.  Or a spouse may choose not to be awarded the residence because he/she will not have the financial resources to make the payment after the divorce is final.  The tax basis of an item of property is often overlooked but may have financial consequences down the line, and therefore should be factored into the division of property.  And there are a host of other considerations that are not intuitively apparent but that a Certified Specialist will be prepared to answer.


And thus, the best answer is – before deciding on moving out, or not moving out, one needs to have a basic concept of the eventual, over-all, property division. The questions of property division can be complex.  One should keep in mind that knee jerk decisions can be costly, and can be regretted for a long time.  It is in one's best interest to get competent professional advice – before irrevocable decisions are made – preferably from a certified family law specialist, such as the Law Office of Lisa Staight, who has the experience and breadth of knowledge to give proper guidance.


Child custody and visitation.  When a spouse moves out of the family residence, any previous child custody and visitation schedule gets disrupted.  This can be a complex issue that may need to be resolved prior to making the decision to move out.  Consulting with an experienced family law attorney can aid in helping you to make a decision on the move and discuss the potential affect on the custody and visitation with your children.


Domestic violence, the game changer.  On the other hand, if there are any issues of violence, or potential for violence, you must do what is necessary to protect yourself and your children. Safety comes first.  If you must leave the house due to issues of violence, you should get to a safe place, and then you should immediately seek contact the police to seek emergency temporary orders and the court for longer term restraining and protective orders, if necessary.  With a proper showing, you may be able to get orders excluding the other parent from the residence and allowing you and the children to return.


These situations are often dramatic, traumatic, and extremely disruptive.  The decisions are complicated and require forethought and scrutiny, and careful weighing of many factors  – which one may not be fully capable of doing at such a highly charged moment. Having experienced counsel, such as the Law Office of Lisa Staight, is indispensable in devising the right strategy and in making the decisions that are right for you, and that will get you where you want to be at the end of the case.



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The Law Offices of Lisa Staight, A.P.L.C., practices law in Orange County, California and is located in Irvine, California. Attorney's of the Law Offices of Lisa Staight are licensed to practice law in the State of California