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Should I File for Divorce Then Move Out or Vice-Versa?

A common question surrounding divorce involves timing a move from the family home. This is more of a personal question than a legal one–although moving out too soon can leave you and your property interests vulnerable. There are situations, like abuse, where leaving is the only way to preserve your safety. Other times, if you and your spouse came to divorce by mutual agreement, you may remain living together until one of you has the funds to move. Here is what to consider before you move out of the marital home.

Joint Custody

Staying in the family home longer can make joint custody arrangements easier. Parents who co-parent well may plan to live near each other so children have ready access to both parents. Sometimes, that means waiting until a home or apartment opens up so there is a place for the other parent to move.

However, if the only way you can co-parent successfully is to create distance, then waiting for the optimal situation is likely not an option. In these cases, you can move out of the home but talk to an attorney about a temporary parenting time order first so you can maintain the relationship with your children. Failure to do that can affect final custody arrangements.

Possible Allegations

Moving out of the family home before speaking to an attorney or filing for divorce leaves you vulnerable to restraining orders. In tense relationships, your spouse may file a restraining order once you move out.

It is more difficult to remove you from the home if you are living there than keep you away. Once you leave, a restraining order may prevent you from picking up your personal property or making needed repairs to the home. There are cases where a spouse remaining in the marital home allows it to lose value due to spite.

Just as with joint custody, you want arrangements settled before you leave. Talk to an attorney before you start your moving plans. If there is a chance you may face a restraining order, delay the move. Also, consider delaying a move until there are temporary orders in place that protect your interest in the home and any personal property remaining inside it.

Ownership Status

If you owned the family home before you were married, moving out is not the best idea. That may give the impression that you are uninterested and that could work against you in any property arrangement. You may not lose your home to your spouse, but the court may be more likely to place the home for sale and force you to split the equity.

That said, owning a house before marriage does not affect who moves out in the event of a divorce. Both parties still have a right to the home. If the house belongs to you and your spouse refuses to move, it is time to speak to an attorney. Depending on the situation, you can either enter a temporary order to protect your interest or negotiate with your spouse to move out. The latter often involves offering financial assistance to support that endeavor, especially if your income is substantially higher than your spouse’s income. Many divorcing spouses feel it is worth the expense to reclaim their home.

Personal Safety

A Motion to Vacate orders your spouse to leave the family home. This cannot be done for just any reason. This only works if the health, safety or welfare of you or your minor children is threatened by your spouse remaining in the home.

The standard is “substantial likelihood of immediate danger” and it only applies to personal safety–not property interests. You cannot remove a spouse because you expect him or her to take actions that devalue the home. However, if abuse, neglect, drug habits or other behaviors place you or your children at risk, the court can order your spouse to leave. Criminal behavior can also provide grounds for a Motion to Vacate.

These orders are temporary and must be renewed every 90 days. Therefore, if the court determines that your spouse was never a threat, they could be allowed to move back in.

Knowing when to move out of the marital home is a personal decision with legal consequences. That is why you need to speak to an attorney before you file for divorce or making moving plans. Infinity Law Group practices only family law and maintains offices in Boston, Quincy, and Needham. Contact the office today to schedule a consultation.

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