There are many questions that people have when considering a potential divorce or separation. For many people it makes their minds race with questions that increases their anxiety to a very uncomfortable level. One question that I am often asked by people whom I tell I am a family law attorney (or divorce lawyer) is, "do I have to stay in the same home with my spouse or can I move out of the home either before I (he/she) files and/or can I move out after I (he/she) files?" The answer is it depends and may be more pragmatic than legal when it comes down to it. This blog deals with situations where there is no physical domestic violence, if your safety or the safety of your children is at stake, move out immediately and contact an attorney and/or the police.
Can I Move Out Before the Divorce is Filed?
The answer to this question is that it really depends on the financial reality of the situation. It is almost always more expensive for two people to live apart than it is for them to share one residence. If you move out, this will immediately increase the economic stress by increasing, sometimes doubling, the monthly expenses. Most likely both parties will still be bound, at least to some extent, to pay for the expenses associated with the marital home, which may include a mortgage/rent, equity lines of credit, upkeep and other expenses associated with the costs of living at the marital home. Therefore, it is typically a good idea to discuss the issue with your spouse and come to some understandings and agreements about how the bills will be handled after you vacate before making any hasty decisions. This is especially true when you are considering a divorce, because the divorce itself will cause additional economic strain with the additional expenses of attorney fees, court costs and sometimes the costs of expert appraisers or witnesses. However, there is no legal reason that you cannot move out of the home before either party has filed a complaint for divorce.
Does it Make a Difference if I Have Children?
It does make a big difference if you have children. While there is still legally nothing stopping you from moving out of the home with or without the children if neither party has filed for divorce, it is still usually a bad decision. If you move out of the home with the children, then the other parent could file for divorce and file a motion for you to return the children to the marital home. Your unilateral action to move out of the home with the children, without the approval of the other parent, typically reflects poorly upon you in the eyes of the judge and the judge may very well agree with your spouse and order that you return the children to the marital home. Then you are put in the position of seeking parenting time with the children outside of the home and you must get the judge to grant you this parenting time.
If you move out of the home without the children, then this often leaves the other parent in the position to dictate what your parenting time will be with the child(ren). If the other spouse denies you the right to see the children, then you should immediately file for divorce and seek a interim or temporary parenting time order for equal parenting time while the divorce case is pending in the court. If you fail to do so, after a period of time, the court will most likely only order that you get whatever parenting time you have been allowed to exercise since you moved out of the marital home.
Can I Move Out After the Divorce is Filed?
In most cases, the answer is no, not without the approval of your spouse or the court and a written order signed by the judge allowing you to move out. First, once the case has been filed, the court takes jurisdiction over you, your spouse, the children and your property. Therefore, in order to make changes, it is generally a very good idea to get a court order allowing you to do so, which requires either the agreement of your spouse or the filing of a motion and arguing the matter to the judge and getting the approval of the judge. Second, often the person that files the case will get an Ex Parte Order to Maintain the Status Quo. This means that if you move out, you most likely have violated the status quo and you risk being held in contempt of court, which could be anything from an admonishment by the judge, to a fine, payment of attorney fees or in very extreme cases, jail time. .
In any case, divorce laws are complicated and often counter-intuitive. If you are considering a divorce, you should seek a consultation with a knowledgeable family law or divorce lawyer (the same thing) as soon as possible. Please do not hesitate to contact my office to schedule a consultation.