We are getting divorced. Should I move out of the family home?

On Behalf of | Jan 31, 2022 | Divorce |

Living under the same roof with your soon-to-be-ex can be uncomfortable and inconvenient when you are going through the divorce process. Maybe you are tired of the fighting, need privacy, feel annoyed and harassed, or you just cannot stand your spouse’s presence around you. Or you no longer feel safe around them. No matter your reason, it is normal to want to get done with the divorce process so you can begin a new life as soon as you can.

One of the questions divorcing parties ask all the time is, “Can I move out of the family home?” or, “When can I get the other party to leave?” There is no straightforward answer to these questions. If you have children, it is highly recommended that you talk with your legal representative first before deciding whether you should move out or not. Unless, of course, you and your children are at risk and you need to move out for the sake of your safety.

What the law says about moving out of the family home while the divorce is underway

The divorce court is usually reluctant to grant one party exclusive occupancy of the family home during the divorce process if there is no alternative place for a party to live and/or no funds to pay for another home. In other words, the court cannot order one party to leave the marital home unless there is a compelling reason to do so, an alternative location, and funds to pay for it.

In some circumstances, the Court may find a party shall remain or one shall vacate when there is marital strife that rises to the level of harassment, stalking, or incidents of violence. If the court establishes that one party is posing a risk to the other party or the children, it may issue a restraining order against the abusive or violent party.

If neither party wishes to leave the home, then a Temporary Orders hearing is held to determine the temporary use and possession of the home.  This usually includes who pays for the home and how another home is afforded.

What if you no longer feel safe?

But what if you cannot wait for the court and your legal representative to square things out? Well, there as already mentioned, the court cannot require one party to leave the marital home before the conclusion of the divorce unless the parties agree to temporary use and possession of the home or the Court enters an Order, which may happen through a restraining order or Temporary Orders hearing.  With a restraining order, such a move is necessary for personal or property safety. To prove safety risk, you will need to provide evidence of violence or abuse. This can include any type of threat, isolation from friends/family, control of the finances, harm to an animal, verbal or physical abuse, stalking, harassment, molestation, photos of broken items, threatening text, emails, and/or recordings, medical records, and/or police reports, just to name a few.

No two divorce cases are alike. If you are contemplating leaving the family home while the divorce is underway, it is important that you engage professional help so you can weigh your options before deciding whether to move out or not.