Leaving The Marital Residence – Should I Stay Or Should I Go?

Divorce and custody proceedings can be stressful and highly emotional. One of the first questions you may ask yourself is whether or not you should continue to live in the same residence with your soon to be ex-spouse until your divorce is final. No law says that a spouse must immediately move out once a divorce is filed. As a practical matter, in every case of separation and divorce one or both parties will eventually need to move out of the marital home. Yet, whether and when to leave the marital home is not only a complicated emotional issue but it can be a strategic legal decision as well. So before you pack up and go, you should consider the following issues and how they could affect the way your divorce and custody proceeding may unfold.

Financial Considerations

If you are the primary wage earner and decide to leave the marital home, you should be aware that you may be required to continue to pay all or a portion of the rent or mortgage and expenses on the marital home. If you rent an apartment or buy another residence, you may find yourself in the position of supporting two households on one income. In the alternative, if you are the economically dependent spouse, you will need to ensure you have sufficient funds to pay for a new residence should you decide to move out, at least for a few months. In the event your spouse decides to financially cut you off, you will want to have sufficient funds available to you to pay for your living expenses until a temporary support order or agreement is put into effect through the court system. Unfortunately, obtaining these orders and agreements can take some time.

Some couples choose to divide household bills proportionately based on their incomes.For example, if you earn 60 percent of your combined incomes, you would take responsibility for 60 percent of household expenses and leave the remaining amount to be paid by your spouse. It may be beneficial to change some accounts, such as utilities, from joint names into the name of the spouse who will be responsible for paying them after the divorce, if that’s something that has been agreed upon.

Effect On Child Custody

If you have minor children, moving out of the marital residence can compromise your custody rights. Generally speaking, if you have minor children and custody is in dispute, you should not leave the marital home prior to coming to an agreement with your spouse on a schedule that you believe is in your children’s best interest. Otherwise, voluntarily leaving your children in the home with your spouse essentially tells the court that you believe the other party is a competent parent and results in the other parent physical custody of the children when you are not there.

If you decide to vacate the marital home, you should also keep in mind that your new residence should be appropriate for your children. Try to select a residence with an appropriate number of bedrooms and bathrooms that is in or near the children’s existing school district; that is safe for them; and is close enough to the other parent that the children can be transported back and forth easily.

Property Rights & Exclusive Possession

While “abandonment of property” is a legal concept that exists in the area of property law, it can come up in domestic matters. Voluntarily leaving the marital residence does not mean you are necessarily giving up your right to claim an interest in the real property or personal property within the residence. You should be aware, however, that once you leave the marital home you will lose a lot of control over what goes on inside the house, including the care or upkeep of the home and its contents. In other words, once you make the decision to leave, even though you may have a legal right to access the property, your spouse may file motions to prevent you being able to come and go at will. Because it might be impractical to move all of your personal belongings out of the marital home, you are effectively trusting the other person to look after your things. So prior to leaving, you may want to photocopy important documents and safeguard items of sentimental or financial value, taking pictures of everything before you go.

Voluntarily moving out can also prompt your spouse to file a motion with the court for possession of the marital home. If the motion is granted, you will be barred from returning to the house while the divorce is pending. In the alternative, you also have the option of filing this motion. The court might order your spouse to leave and allow you to remain in the home.

Psychological & Emotional Well-Being

The prospect of continuing to live in the marital residence with your soon to be ex-spouse can create anxiety regardless of how well you get along. This high conflict environment can impair your physical health, job performance, and ability to care for your children. In addition to the psychological impact this living arrangement can have on you, in some situations it can also be psychologically harmful to your children. You must put you and your children’s mental health and safety first if and when conditions between you and your spouse become psychologically or emotionally harmful. If your case involves domestic violence or there is any risk to you or your children’s safety, you should know that you have options. First secure your safety and then consult with an attorney or the domestic violence hotline in your area for assistance. No judge is going to penalize you for leaving an environment that is unsafe for you and/or your children.

The Pennsylvania Department of Human Services website has various resources if you are a victim of domestic violence. Visit their website for more information at: www.dhs.pa.gov/citizens/domesticviolencecrisisandprevention/index.htm. You can also find helpful information from the Pennsylvania Coalition Against Domestic Violence online by visiting www.pcadv.org or calling 1-800-932-4632. Among the services provided to domestic violence victims are: crisis intervention; counseling; accompaniment to police, medical, and court facilities; and temporary emergency shelter for victims and their dependent children. Prevention and educational programs are provided to lessen the risk of domestic violence in the community at large.

Experienced & Compassionate Representation

Keep in mind that no 2 family cases are alike, and you should consult an attorney regarding your specific circumstances prior to making any decisions. If you are facing the difficult questions involved in leaving your spouse, it is normal to feel confused, challenged, and overwhelmed. Parents have even more pressure and concern during divorce proceedings. Everyone wants to do what is best for their children. That is often a very difficult decision to make.

At Tibbott & Richardson, we understand these issues because we listen to our clients’ concerns. We are parents too. We have experienced these situations and making these difficult choices. Our experienced team fully explains all divorce and custody options as well as court proceedings so our clients can make the best decision possible for their family. Let us help guide you through this difficult time.

There IS light on the other side of the tunnel. Once you make the decision to separate, the only thing left to do is take action. Making that decision is the hardest part…but if you don’t make any decision at all, your situation can get worse for you and your children. It’s ok if your situation is not turning out the way you hoped and dreamed. You can create a new normal that includes you being happy. Being knowledgeable and prepared with the right representation will alleviate a lot of anxiety in what is already an emotionally stressful situation.