Episode 45 Transcript: Moving Out of the Marital Home

A lot of couples who are at the outset of a divorce process are still living in the same home, in the same apartment, and that can make for a challenging and uncomfortable situation for both people. And so often, there’s some motivation for the couple to be able to physically separate before their final agreement has been signed. And by final agreement, I mean the agreement that is resolving all of the substantive issues, parenting and financial, that they need to resolve as part of their divorce. 

That resolution takes time, and for a couple who is struggling to get along, living in the same home for a year or two years during their divorce negotiation is not an appealing prospect. 

However, for most people, if and when you consult with an attorney and ask them about the prospect of leaving the marital home during the divorce negotiation process, you will get some strong pushback and some advice often not to leave the home during the divorce process. And I just wanted to speak to that. 

Obviously, it goes without saying, as with all of these episodes, I can’t give you advice about your particular situation, but I just want to speak to… I notice that a lot of couples, especially in mediation, will come to a session having met with an attorney, been advised not to leave the home, and not quite understanding exactly why that is. 

There are a couple of components at play here. 

The first that I just want to take off the table is the issue that you will be found “guilty” – that’s not even the right word, but I think a lot of people think of it as being found “guilty” – of abandoning your spouse. Not relevant. Don’t worry about it. 

That may have been relevant when there was fault divorce and abandonment of a spouse was considered one of the fault grounds that entitled a spouse to divorce, but if you live in any of the 50 states in the United States, there’s no-fault divorce. Whether or not you abandoned your spouse is not relevant with regard to entitling your spouse to get a divorce from you. 

Your spouse can get a divorce from you whether or not you’re in agreement, whether or not you’re in favor of it, whether or not you did anything wrong. So I just want to take the idea of abandoning your spouse completely off the table as it pertains to entitling your spouse to a divorce. They’re already entitled to one. 

The second component that comes up is if you own your home, then people have a concern about what it means with regard to your rights to the home as an asset, both as a financial asset but also as a place to reside in. 

As a financial asset and as we’ve talked about in the episodes about how to deal with your marital home as an asset in a divorce process, if you own your home as part of the marriage, you have an entitlement to a certain percentage of the equity in your home. And again, you need to consult with your own attorney on this point, but generally speaking, in physically leaving the home, you’re not relinquishing your financial right to your equity in that asset. Generally speaking. Can’t say for sure in your case. 


However, what you might be doing, not in a formal way but more in a practical way, is disadvantaging yourself with regard to your right to be the spouse who remains in the home long-term. 

So if both you and your spouse want to be the person who retains the home as your asset and be the person who stays living there long term, you could be putting yourself at a disadvantage if you move out of the home and during the course of your divorce process are the person who is living elsewhere, whereas your spouse has remained in the home. It’s not so much that you are formally relinquishing your right to remain there, but that practically speaking, when you’re the person who is not living there and wants to live there as opposed to the person who is living there and wants to live there, the person who is living there is sort of de facto at somewhat of an advantage. Not in any formal way, but just something to keep in mind. 

Where leaving the home has an impact is around parenting. And so here you really want to be aware that, again, similar with the home as a financial asset to live in, it’s not so much that in moving out of the home to an apartment down the block that you have formally relinquished your parental rights. No. But if you leave the home and your kids are now primarily residing five weeknights a week with your spouse and maybe they’re coming to your new place down the block on Saturdays, but you really want to have a 50/50 parenting schedule with your kids, moving out of the home and, in some ways, de facto acquiescing to other than a 50/50 parenting schedule is putting you informally, not formally but informally, putting you at somewhat of a disadvantage. 

The status quo of parenting has some weight in the divorce process, so you really want to be mindful before you leave the home as to what your goals are with regard to your parenting schedule and as to what your interim parenting schedule will look like if and when you leave the home. 

So if you want a 50/50 schedule with your kids, you can leave the home in consultation with your attorney, but you want to be very focused on whether or not you’re going to be able to start doing a 50/50 parenting schedule right from the get-go. If that’s not the case, you want to really think long and hard and strategize with your attorney about whether it does make sense for you at this point in the process to leave the home before you have more assurances as to whether or not your ideal parenting schedule will be something you and your spouse ultimately agree to. 

Final thing I want to say on that point is that sometimes when, let’s say, both spouses agree that really they need to just not be living in the same place but neither person wants to be disadvantaged in the realm of parenting, and parenting schedule specifically, you can come up with a formal written agreement, an interim agreement, sometimes a letter between the spouses regarding your move out, but often a more formal written agreement that specifies that “We’ve agreed that I’m going to move out. We’ve agreed that I’m not abandoning my rights in the property. But most importantly, we’ve agreed to the following parenting schedule,” so that you have some written reassurance that the parenting schedule that is important to you is going to be followed even when you are out of the home, and thus, you have not put yourself at such a substantial disadvantage in moving out of the home. 

All of this has a real technical and sort of legal and strategic component to it, so it’s absolutely something to talk about in detail with your advocate in the divorce process. But I wanted to put those points on your radar, generally speaking, and then also flag for you that, in many ways, the risk can be mitigated, if not solved for completely, if you are able to come up with some kind of interim agreement that protects your parenting schedule in a way that is acceptable to you. 

Episode 46 Transcript: Filing in Court During Mediation

Episode 44 Transcript: Co-Owning the Marital Home