It’s not surprising that when a couple begins the separation and divorce process, they no longer want to live together.
California divorce law imposes a six–month waiting period from the time the divorce petition is served, and the prospect of staying in the same home for that long may feel unbearable. The couple may or may not agree about who should stay in the home and who should move out.
But there are several considerations that both spouses need to understand before either one leaves the former marital home. You can talk to a divorce lawyer for men in California if you have more questions about the legal implications of moving out of your home during a divorce.
What Could Happen in the Divorce Proceeding When One Spouse Moves Out of the House?
Two aspects of the divorce process can be affected if one spouse moves out of the marital home before the divorce is finalized.
Child Custody Arrangements and Visitation
If one spouse moves out of the family home before the divorce is finalized, and without drafting a formal child custody and visitation agreement, it could negatively affect their custody requests during the divorce.
As such, it’s a good idea to consider a compromise, such as moving into a spare bedroom within the home. Another option is a temporary parenting plan in which the spouses take turns staying with the children in the home while the non-present spouse stays in temporary housing (the children stay full-time in the home).
The parenting plan should divide parenting time as equally as possible; otherwise, the divorce court may make the unequal division of custody permanent.
If children are involved and both parents staying in the home is untenable, a California child custody lawyer for fathers can help create a parenting agreement that ensures the spouse leaving the marital home isn’t unfairly penalized by the court later.
Division of Property
Under California law, the spouse who remains in the marital home while the other moves out is not guaranteed possession of the home during property division.
So if you’re concerned that moving out means you lose the possibility of eventually owning the home, it’s a good idea to consult a lawyer who can advise you as to how the property division might work out, even if you move.
According to Ca. Fam. Code 760, California is a community property state, meaning the courts will divide all property (assets and liabilities) as equally as possible. If one spouse is to have the family home, the other spouse should have some marital assets that offset that.
It’s important to note that separation can start the division time frame, meaning that if one spouse moves out, their income from that time becomes personal property, not marital property.
Schedule a Case Evaluation call 951-339-3826
Can I Force My Spouse to Move Out of the House During the Divorce?
Generally, one spouse cannot simply tell the other to move out, especially if that spouse’s name is on the lease or mortgage.
There have been cases where one spouse changed the locks to prevent the other spouse from re-entering the home. But because the locked-out spouse was listed on the mortgage, they had the right to be in that home and could break in or call a locksmith to change the locks again.
One exception to this is if the divorce involves domestic violence or sexual abuse. Even in that case, a court would need to issue a court order, and the spouse seeking the other spouse’s eviction must present evidence of threats of harm or actual harm.
Are There Any Good Reasons for One Spouse to Move Out Before the Divorce Is Finalized?
There are a couple of reasons it might actually be advisable to move out of your house during a divorce. Divorce is one of life’s most stressful events, and it may be that, as a couple, it’s not workable to remain under the same roof while the proceedings take place. In cases where the couple can’t get along, it could be less stressful to be apart. It can also make negotiations easier to handle.
Another critical concern is whether there are children in the family home. If the parents can’t get along, it will put additional stress on them. If the parents can maintain cordiality by living apart and splitting parenting time, that can make the divorce less onerous for the children.
However, no matter the reason, the spouse moving out should consult an experienced attorney to ensure they don’t end up being accused of abandonment.
While that’s technically a legal term with strict definitions, the other side could use moving out as evidence of wanting to leave the marital home and/or children. Having a legally drawn-up document that both spouses sign stating that the move was agreed upon is highly recommended.
Click to contact us today
Are There Situations in Which Living Together While Divorcing Is Not Advisable?
Yes. If one spouse has a history of domestic violence or domestic abuse, whether toward the other spouse, children, or both, those in danger of harm should be separated from the abuser.
In addition, if one spouse has an alcohol or drug addiction, the other spouse and any children in the family home should live separately to avoid any dangers that may not be domestic abuse but could occur while the addict is under the influence.
Complete a Case Evaluation form now
What Should I Do if I’m Considering Moving Out of the Home Before the Divorce Is Finalized?
Division of property can be one of the most complicated and divisive aspects of divorce. There may be good reasons to try to stay in the marital home until the divorce is finalized. An experienced divorce attorney can assess your specific situation and advise whether you should move out of your house during a divorce.
Contact Reel Fathers Rights today for an initial consultation with a family lawyer.
Call or text 951-339-3826 or complete a Case Evaluation form
