Now that you are certain you want to move forward with a divorce, it is time to make one of the most important decisions of the entire process: Will you be moving out at some point while the divorce is pending?
The instinctual reaction for most guys going through a divorce is to separate themselves from the potential drama and inevitable arguments that come with living in the same household as their soon-to-be ex.
However, the potential ramifications moving out will have on your case means this decision should not be made lightly.
You should take a lot of time to consider the pros and cons of moving out, including what it can mean for your case if you have children and what will result financially from this choice.
Moving out creates potential custody issues
For fathers, the most obvious problem that can arise with the decision to move out of the marital home while a divorce is pending involves their future parent-child relationship.
Family courts across the country will use some form of a “best interests of the children” analysis when it comes to awarding custody. Since the children are most likely going to be staying in the marital home, moving out during the divorce immediately limits your parenting time.
With a divorce taking anywhere from a couple months to more than a year, you are now restricting your ability to do the little things that courts often look toward when making a custody determination.
Who puts wakes the kids up and gets them ready for school? Who takes the kids to doctor’s appointments? Who cooks dinner and gets the kids ready for bed?
All of these questions will likely arise during the divorce proceedings, and even if you had an equal share in these responsibilities before you moved out, the answer will likely be your wife during the period of time leading up to the custody hearing.
Although you may have had a strong case for equal or joint-physical custody before making the decision to move out, the court will likely weigh the recent parenting arrangement more heavily.
Additionally, you are also essentially becoming the non-custodial parent voluntarily, which sets up a precedent for the judge.
You obviously felt comfortable with your wife’s ability to care for your kids since you packed up and left, so it is clearly in the best interests of the children to keep the living situation the same after the divorce is final.
The intent behind leaving the marital home may have been to simply avoid unnecessary arguments and fighting; however, the court will read into this decision much differently for fathers.
This reason alone should give you pause before making hasty arrangements to sleep on your brother’s couch or rent a shabby apartment.
Two households, twice the bills
Divorce is already an event that can wreak havoc on your financial stability. From court and attorney fees to splitting your bank account and assets in half, your sense of fiscal security enters a state of flux.
Because of this uncertainty, it is typically not a good idea to add more financial burdens to an already challenging time of your life — something you risk by moving out of the marital residence.
When the primary earner opts to leave the home preceding a divorce, a court will often issue a status quo order. While this typically restricts a parent from removing their child from the state or county, it can also be implemented to protect the lower-earning spouse from losing their home.
This means that whoever was in charge of paying the mortgage and other monthly bills must continue to do so until matters are resolved in court.
If you are the higher-earning spouse and you decide to move out, you may be stuck with two sets of bills: A mortgage and utilities for the marital residence where you are no longer living, as well as the new home or apartment where you move.
You also may lose access to your possessions, including important financial documents that may become relevant later in your case. Additionally, you run the risk of incurring temporary spousal support or child support, which can eventually be rolled into a permanent order.
Obviously, an additional set of bills is not something anyone would voluntarily undertake, so until a judge orders you to leave the home, you are often better off financially to remain in the marital residence.
You may be left with little choice
Although there are plenty of reasons to stay in the marital residence — particularly if you have children — circumstances may arise where it is potentially worth the associated risks to leave.
When a spouse wants to kick the other out of the home during a divorce, they may stoop to drastic measure to make that happen since both parties are presumed to have equal access to the residence until the court says otherwise.
For example, you may fear that your spouse will attempt to goad you into an argument or straight up lie about a domestic abuse incident.
It is unfortunately not uncommon for a wife to claim physical or mental abuse has occurred or that there is a realistic risk of abuse to themselves or their children for the sole purpose of having the court forcibly remove the husband from the home.
Due to the very low burden of proof required to obtain an emergency protection order and the significant impact this can have on divorce proceedings, it may be a better option to remove yourself from that situation entirely.
However, you should always consult with your attorney before making any major decision of this nature to ensure it is truly in your best interests.
This is particularly important since some states may require physical separation for a period of time before a divorce can be granted.
What to do if you must leave the home
If you are determined (or forced by the court) to leave the home, there are several things you should consider doing before you lose access to the residence entirely.
First, you should make sure to have copies of all relevant documents since it is distinctly possible that you will be barred from reentering the residence.
This includes tax returns, paycheck stubs, bank and credit card statements, loan agreements, mortgage documents, car titles, etc.
You can never be sure whether your spouse will play ball once the divorce is underway, and the fees associated with filing motions to compel during the discovery process can be avoided if you simply have copies of all relevant documents available.
Next, make sure to document valuable pieces of property through photographs or video. If you lose access to your home, your spouse will have sole possession of all your stuff. It is not uncommon for certain items to be “lost” in the months it takes for your divorce to proceed.
Everything from your wife’s jewelry to your baseball card collection should be documented just in case some items mysteriously vanish on your spouse’s watch.
Finally, thoroughly research where you decide to live — particularly if you have children.
If you are attempting to obtain shared parenting, it will be important for you to remain near enough to the marital residence that it will not interfere with your children’s schedules. You will ideally remain within their school zone and be able to continue upholding their daily routines.
You also need to make sure that your living conditions are similar, meaning you cannot crash on a friends couch in their one-bedroom apartment and expect the court to grant you 50 / 50 custody.
There is an expectation that you should maintain a similar standard of living between both residences, which can sometimes be difficult due to spousal support, child support, living expenses and divorce fees.
Although your initial reaction to a divorce may be to get out of the home immediately, there are obviously many factors you need to consider since where you live will likely have a huge impact on proceedings.
Starting with a clean slate may be your goal, but if the divorce is pending, you may be better off waiting until everything is finalized to take that first step.
Mat Camp is a former Lexicon Services Online Editor, who focused on providing a comprehensive look into all aspects of the divorce experience. On MensDivorce.com, he concentrated on issues, such as parenting time, custodial rights, mediation, the division of assets, and so much more.
Mr. Camp used the wealth of experience of Cordell & Cordell attorneys to bring tangible answers to reader questions in Ask a Lawyer articles, as well as offer a step by step process through the divorce experience with Cordell & Cordell Co-Founder and Principal Partner Joseph E. Cordell in Divorce 101: A Guide for Men.
Mr. Camp used thorough research to highlight the challenging reality that those who go through divorce or child custody issues face. He helped foster the continued success of the Men’s Divorce Survival Guide, the Men’s Divorce Podcast, and the Men’s Divorce YouTube series “Attorney Bites.”