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Do I Lose My Rights if I Leave the Marital Home During Divorce?

Michael Tierney
September 29, 2022

Divorce is a process that inevitably leads to compromise and sacrifice as you separate from your spouse. As unfortunate as it sounds, some of the rights and options you had while married can change or even evaporate when you divorce your spouse. There are also very strict legal regulations surrounding the conduct of both parties in a divorce. Certain misconduct can lead to serious repercussions in the divorce, including the forfeiture of certain rights and resources awarded during the negotiations.

The violations required to justify such a forfeiture are often severe infractions committed against your spouse or the court that violates the law in some way. Unfortunately, what you might consider to be a violation doesn't always qualify as one in the eyes of the law.

One concern many people have when dealing with divorce is that leaving the marital home can adversely affect their standing in the negotiations. Even though the divorce process only begins because the marriage is no longer sustainable, there are still certain respects that must be paid to your spouse and vice-versa. These respects are not always outlined to the parties involved in the divorce, meaning some people are terrified to take certain actions for fear of violating the law. This is why so many are concerned that leaving the home they shared with their spouse will end up hurting their case. The real question is whether that is the case.

Can You Move Out During Divorce?

Solution The simple answer to this question is "yes," you are legally allowed to move out of your marital home during the divorce proceedings. Even though you must remain respectful of your spouse's rights during the negotiations, you are not obligated to remain in the same space as them.

Usually, divorce results from issues that have made cohabitation unsustainable or impossible. Additionally, you will likely move out of that home once the divorce is complete anyway. Many do not realize that they are permitted to move out whenever they please, not strictly when the divorce is finalized.

A Woman Moving Out

In fact, moving out of the marital home before the divorce begins is a common practice employed when one spouse cannot reasonably cohabitate with the other anymore. In some states, separating for a certain period is a legal requirement before the divorce process can begin in earnest. This is known as the "separate and apart" period that demonstrates you genuinely want to separate from your spouse. Not every state enforces this practice, but those that do require the spouses to live in separate homes for a set amount of time.

An example of a "separate and apart" state is North Carolina, which requires the spouses to live separately for a minimum of 1 year before the divorce can begin. Other states allow you to begin the process immediately if the marriage is irretrievable and do not punish either spouse for moving out of the marital home. In some cases, moving out of the shared home is essential for the safety of one or both parties during the divorce proceedings.

When is Moving Out Encouraged?

While some states legally require you to live apart from your spouse, others do not have this provision but still encourage certain people to separate from their spouse first. This is because some marriages have become so unstable that continued cohabitation is dangerous and risks their health.

One of the most serious issues in a modern marriage is domestic abuse, where one spouse is mentally or physically harmed by the other regularly. Domestic abuse, while illegal, is not always caught since the victim is often too scared to come forward against their spouse.

Domestic abuse is frighteningly common, with nearly 20 people being physically abused by their partners per minute. This translates to roughly 10,000,000 men and women facing abuse annually. When being abused, it is reasonable to be scared or concerned about approaching your spouse with divorce. Especially since most abusers threaten far worse when the idea of you leaving is broached.

A Toxic Marriage

This level of fear, while reasonable, is not something you should be forced to deal with if it can be avoided, which is why it is encouraged for victims of abuse to move out as soon as possible.

By moving out and staying with a friend or family member, you can remain safe while proceeding with the divorce paperwork. Being forced to operate from the confines of a home where your abuser is can lead to your spouse retaliating violently. You can even request a protective order that legally bars your spouse from approaching you until a judge rescinds the effects.

Attempting to move out of the home you share with an abusive spouse can be terrifying, especially if you fear it might impact your rights during the divorce process. However, moving out will not compromise your claim in the divorce and will allow you to escape the grasp of your abusive spouse. Unfortunately, other factors can impact your ability to leave the family home.

Does Moving Out Affect Asset Division?

One of the biggest staples of divorce negotiations is asset division, which determines what percentage of the property and finances you and your spouse receive. When dividing assets, several factors impact who gets what and whether you or your spouse are given more. One concern is whether moving out will cost you a portion of the assets you would normally receive. Given that divorcees often start over, losing out on important or sentimental property can be devastating to post-divorce life.

Solution Fortunately, moving out of your marital home has no impact on how the asset negotiations work out.

The division of assets is meant to be equitable and ensure both parties receive assets that will allow them to lead a life within the bounds of the quality of life they enjoyed while married. Whether you are still living with your spouse has no impact on these calculations, and some states even opt for a full 50/50 split of assets by default.

Divorce Asset Division

In states where the division of assets is calculated based on the different quality of life factors, the following details are considered:

  • The debts of either spouse.
  • The financial contributions of one spouse to the other's education.
  • The economic circumstances of each spouse.
  • Whether certain property or assets are more logically left to one spouse than the other.
  • Whether one spouse has wasted assets.

These details determine the division of assets, with your current residence having no impact. The only other concern about asset division is who receives the house you moved out of and who is forced to find a new permanent residence. While it might seem like moving out will diminish your chances of keeping the house, this is not the case. If you move out, you still have the same chances of keeping the house as your spouse. Typically, the spouse who keeps the house compensates the other by providing assets and funds of comparable value to the house.

Ultimately, the division of assets must always remain equitable unless one spouse did something dishonest during the marriage. Moving out of your marital home does not qualify as dishonest and only serves to begin the separation process. While this is likely somewhat encouraging, one detail might impact your ability and willingness to move out of the home you shared with your spouse.

How Do Children Affect the Process?

Most marriages produce at least one child unless both spouses actively avoid having children. While having a child is not a bad thing, children are deeply affected when their parents get divorced. This is made even more difficult if the relationship with your spouse has become hostile and the child is witness to this hostility.

Divorce is an emotionally confusing and turbulent time for children, especially young children trying to understand why their parents are separating. This confusion can be made far worse if you and your spouse constantly fight while living in the same house.

Constant arguments can make the child feel uncomfortable and adversely affect their mental health. Moving out of the family home can turn it into a conflict-free zone where your child can process their emotions safely and without interference. Seeing you and your spouse arguing might be terrifying for the child, but you might be more scared that moving out will cost you time with them once the divorce is over.

Child custody and visitation is easily the most contentious part of divorce negotiations since no parent wants to forfeit their place in their children's lives. Moving out of the home where your child lives and leaving them with your spouse might cause you to worry that you have jeopardized your chances of securing custody of the child. Fortunately, your continued residence in the family home is utterly irrelevant to the factors determining custody arrangements.

Child With Divorced Parents

Child custody and visitation arrangements are determined by an all-important detail that supersedes any other claims.

Solution The child's future is always determined by what is in the child's best interest.

Whenever a decision needs to be made about a child's future in civil court, the decision focuses on ensuring the child remains where all their needs will be met, and they can enjoy the proper quality of life. Divorce will already be extremely disruptive to the child's life, so the custody arrangement is meant to place the child where their life will face the fewest changes.

Typically, the following details affect child custody:

  • The age, sex, and health of the child.
  • The mental and physical health of the parents.
  • The lifestyle of each parent.
  • The emotional connection between the child and each parent.
  • The capacity of each parent to provide the child with food, shelter, medical care, and clothing.
  • The current lifestyle of the child.
  • The child's quality of education.

These all contribute to the determination of the child's best interest. If one parent is better equipped to handle the above needs, they will likely be selected as the custodial parent. In some cases, the courts lean toward assigning custody to the mother but only if the mother meets the criteria above. Your chances of being awarded custody are not impacted by your decision to move out of the family home.

With all this in mind, the only concern left is preparing for the divorce proceedings. There are several situations you might find yourself in during divorce proceedings, many of which are unpleasant. Without prior knowledge, you might find yourself at a disadvantage. Fortunately, there are ways to correct this disadvantage.

Learn the Law

Divorce is a highly unpleasant and complicated civil process that can be overwhelming. With so much riding on the case, it is easy to find yourself terrified of making a simple mistake that might cost you important rights. While moving out of your marital home does not negatively impact the divorce proceedings, it is understandable if you are wary. Moving out of the home you shared with your spouse cements the fact that your married life has ended, and you are moving toward an uncertain future.

Fortunately, this could easily be the first step to living a happier life than you had been leading while married and sharing a home with your soon-to-be ex-spouse. Regardless, divorce remains one of the most complicated legal procedures in the world, meaning knowledge is essential.

Person Learning Law

The knowledge necessary to survive the divorce process is not as comprehensive as what a lawyer needs to know to guide you. However, key details can play a huge role in how you conduct yourself and protect yourself from your spouse's machinations. Not every situation is inherently toxic, as there are ways to encourage an amicable divorce rather than a hostile one.

Nevertheless, the only way to ensure a satisfactory result is to locate the information on these scenarios. Fortunately, that information has never been easier to acquire than it is now. A few taps on a keyboard can unlock a treasure trove of knowledge you can use to protect your interests. We know divorce is something you would have preferred to avoid, but we hope this article proved helpful to your situation.

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Written By:
Michael Tierney

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