A divorce is stressful. In some situations, once a decision for divorce has been reached, it can seem that continuing to live in the same house together is more than you can bear. During the process of separating and/or filing for divorce, it is common for one spouse or the other to want to move out of the marital or shared home. Sometimes one spouse will volunteer to move out, in other situation, one spouse is asking or even begging the other spouse to move out. While it is certainly reasonable to want to try to avoid conflict, especially when the goal is to prevent children from being exposed to conflict, leaving the family or shared home during the pendency of a divorce (or prior to a divorce starting) can have significant consequences. Before you pack your boxes to move, you need to make sure you have considered all of the issues surrounding such a decision:
- Under family court laws in both Kansas and Missouri, there is no requirement or legal obligation that one spouse move out of the home. As long as you and your spouse are living together when a divorce is filed, you generally have an equal right to continue to reside in your home. Of course, if there is domestic violence, emotional abuse or other considerations, sometimes the advice about living situations is changed for the purposes of safety.
- Who has the right to exclusive possession? Generally, assuming there are not domestic violence allegations, it is difficult for one spouse to force the other spouse of the home. However, if one spouse leaves voluntarily, it may be easier for the other spouse to keep that spouse out of the home long-term. For example, once a spouse leaves the home, the other spouse can ask the court for an order of exclusive possession of the house. This can create problems both, in having access to the home and the items in the home, as well as in scheduling or having access to the children. For many people, once they vacate the marital home, they do not have access to the financial documents and other important evidence that they will need to meaningfully litigate or participate in their case. It will help expedite the case and make the case process more cost efficient if you are able to gather and obtain important documents and evidence.
- Financial considerations in moving out of your home: moving out of the marital home before a divorce is decided or finalized can cause financial difficulties. While the divorce is pending, generally, you are expected to continue your financial contributions to the household. This could mean that you are required to continue paying 50% of the mortgage, utilities and other expenses associated with your household even if you no longer are living in the house. You may find yourself trying to both, support the marital household and your new household if you elect to move out of the home prematurely.
- What are child custody considerations if you move out of the marital home? Electing to voluntarily move out of the marital home could compromise or limit your custody position in the divorce case process. If you are going to leave the home, it is important that you have an agreed written temporary custody and parenting plan. Without this, at any time, the other parent could change your parenting time and access to the children. The court could believe that your willingness to leave the marital home where the children live indicates your willingness to be away from the children and not have involvement in their day-to-day lives. Departing the marital home could also be viewed as a situation where you have conceded custody or the majority of the parenting time to the other parent. If you intend to seek significant, equal or primary custody of the children involved, it is important that you obtain legal advice before proceeding with a plan to relocate out of the marital home.
When Should You Decide to Move Out?
There are times when it is the right decision to move out of the marital home. When there is domestic violence or abuse involved, it is necessary that the parties physically separate for everyone safety. If you are unsafe, determining and making plans for safety may be necessary and in the best interests of the children. Additionally, if the parties in a significant amount of conflict with one another that cannot be limited or contained, such as where there is yelling, name calling or other hostile behaviors, particularly if these actions are happening in the presence or hearing of the children, it may be best for everyone for the parties to separate and not reside together. Hopefully, if you made a responsible decision to move out for the sake of the needs of the children, the judge will respect that decision and not hold it against you. However, moving out in these circumstances should be a last resort option.
What Should You Do Instead?
Before making the decision to move out, the best thing you should do is schedule a consultation with a knowledgeable and experienced family law attorney. He or she can provide you with expert guidance about your particular situation and what is best and going to benefit your particular needs.
What if You Have to Move Out?
If after getting appropriate legal advice, you determine it is necessary to move out, you should make sure you have advice and a plan of action for moving forward. In preparing to depart your home, make sure you make copies of important documents, inventory and photograph the contents of your home, consider the location you elect to move to based on the needs of your children, where they attend school and a home or living environment that will meet your children’s needs. Finally, if you are moving out, it is of upmost importance that you get a temporary parenting plan and custody arrangement established to make sure that you have continued meaningful access to your children. If you want to discuss the need to move or what your relocation from the marital home would look like, all Pingel Family Law today to schedule your consultation at (816) 208-8130. We’re here to help you work through your issues and concerns.