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Could Leaving the Marital Home Negatively Impact My Case?

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Whether or not you should leave your home before or during the pendency of a divorce or other family court action depends entirely on the circumstances of your case. In some situations, it might be wise to leave the house because of the threat of domestic violence or the threat of having a restraining order taken out against you. In other situations, you might want to stay in the home because you are the primary caregiver for your children and it is in their best interest to remain in their house.

Who Leaves the House?

Often times, I get asked, “Is it true that the man always leave the house?” No that is not true. There could be many situations where if there is a dispute over who is to remain in the house, the woman is the one that is ordered to leave. This could be for many reasons. It could be that she has family around that she can stay with and the husband does not. It could be that she has the financial means to go rent an apartment while the husband was home raising the kids. It could also be that she was the aggressor in a domestic violence situation.

In cases where there is domestic violence, it is very important that focus is on the safety of the victim. It does not matter if there is a financial incentive to remain in the home if you do not feel safe while you’re there.

In cases where the parties to a divorce or other action are both wanting the other to leave the home, then a Motion to Vacate is usually brought before a family court judge. The judge does not have the power to remove someone from their home unless they make a finding that there is a danger if both of them remain together. Typically these types of issues are resolved by the parties and their attorneys before it is even argued in front of a judge. Economic realities are often the deciding factor when it comes to who should move out.

If you are in a situation where you want to move out or you want your partner to move out, consult with a lawyer to ascertain if that is the best course of action to take.


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