Moving Out in Divorce

Most divorce lawyers will tell you not to leave your house upon filing for divorce. The marital home is almost always one of the most significant assets in the estate. If there are children involved, then it is important to ensure you remain in the home. If you anticipate there will be a custody battle, staying in the home can bolster your case. Of course, every situation is different, and sometimes leaving the marital residence is the best or only option for clients. Following are some things to consider regarding your divorce and marital home in New Jersey.

The judge will almost never order one spouse to vacate the marital home during a divorce. This is true even if one party owns the marital home outright. Both spouses typically will have the right to continue living there throughout the divorce. Of course, if there is domestic violence, then the judge may order one spouse to leave. This will require a full hearing with evidence. Unless there are extreme circumstances, it is rare for a judge to order the removal of a spouse.

Courts are more likely to award custody to the parent who stays in the home with the children. This is because that parent will probably be doing the day-to-day parenting judges look to when making custody determinations. If you are getting a divorce, the marital home is the best place for you to remain to show that you continue to interact daily with the children.

Staying in the marital home during a divorce can be beneficial to your litigation. You will continue to have access to various financial documents and paperwork. You will be able to monitor the actions of your spouse and conduct with the children. This can be helpful to a case that is heavily contested and reliant upon discovery documents and other evidence.

If one party can afford to live in the house after the divorce, then the court is also more inclined to award possession of the home to the party who has continuously lived there. Additionally, once one party decides to leave, they will not generally have the right to come and go whenever they want. Therefore, deciding to leave the marital residence during divorce is an important – and often permanent – decision.

Finally, for most couples, staying in the marital home during divorce is the most affordable option. In the early days, it can be difficult to budget for the operation of two separate households. Most apartments require security deposits or a few month’s rent up front. Lump sums of money are not easy for the typical family to get ahold of, especially if they have exhausted their coffers with legal fees as it is. By staying in the residence as long as possible, spouses can begin preparing for the inevitability of establishing a separate home.

Deciding to leave the marital residence can have significant consequences for your family law case. Discussing all your options with an experienced attorney and understanding your rights before you vacate the property is the smartest thing you can do regarding your divorce and marital home.

Sometimes, even if the judge does not order anyone to leave, the best thing you can do for your family would be to find another place to stay. Divorce is inherently stressful, especially for children. If their parents are unable to remain in the same residence without arguing and fighting, it is probably best for all involved for one parent to leave. Living under the same roof with an ex-partner can be a volatile situation for even the calmest and most rational of people.

Sometimes, parents can agree to rotate time in the home. This is usually feasible if close friends or other family members are willing to ‘host’ that parent temporarily until the divorce is finalized. The children can then stay in the home and keep their routine the same.

More often than not, parents cannot move out and take the children with them without an agreement or order. You can remove the children from the home if your spouse signs an agreement permitting the move. Otherwise, you will need to ask the court to give you temporary physical custody of the children to enable you to leave with the child.

Before you make the decision to leave, you should understand your financial circumstances. Create a budget taking account expenses associated with your new home. Come to an agreement with your spouse about who will pay for the expenses, utilities, and repairs or maintenance of the marital home while the divorce is pending. Consider where the second residence should be located as it pertains to ease of visitation, transport to school and children's activities, and of course, the safety of the children.

You and your spouse may decide that it is financially beneficial to sell the home and split the equity that remains. In New Jersey, courts are frequently allowing the marital residence to be sold off during the divorce case (also called pendent lite). The law allows a trial judge to allow the sale, mortgage, or otherwise encumbrance of an asset if it is necessary to allow both parties to fund the litigation. The court can order the sale if it is reasonable and just.

Contemplating the circumstances of a divorce and marital home can feel overwhelming. If you have questions about what to do regarding your divorce and marital home, call The Law Offices of Peter Van Aulen at 201-845-7400 today, for a consultation.