It’s not surprising that when a couple begins the separation and divorce process, they no longer want to live together. Because California has a six-month waiting period from the time the divorce petition was served, 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 formerly joint residence.
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 before the divorce is finalized.
- Child custody and visitation. If one spouse moves out before the divorce is finalized and without drawing up a formal custody and visitation agreement, it’s possible that it could negatively affect their requests for custody during the divorce process. Because of that, it’s a good idea to consider a compromise, such as moving into a spare bedroom within the home. Another option is an arrangement between the spouses where they 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 time should be as equally divided as possible, or the divorce courts may decide that the unequal division of custody time should be made permanent. If children are involved and both parents staying in the home is untenable, contact an experienced divorce and custody attorney to ensure that the spouse leaving home isn’t unfairly penalized by the court later.
- Division of property. Under California law, the spouse staying in the house while the other moves out is not necessarily guaranteed possession of the house during the 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. California is a community property state, which means the courts will want all property (assets and liabilities) divided as equally as possible. If one spouse is to have the house, the other spouse should have some 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.
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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, in fact, even break in or call a locksmith to change the locks again.
One exception to this is if the divorce involves domestic violence. Even in that case, a court would need to be involved in issuing a ruling, and the spouse asking for the other spouse to be evicted 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. 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 area is if there are children in the home. If the parents can’t get along, that’s going to put additional stress on them. If the parents can maintain cordiality by living apart, that can make the difficulty of the divorce less onerous to 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 home and/or children. Having a legally drawn-up document that both spouses sign stating that the move was agreed upon is highly recommended.
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Are There Situations in Which Living Together While Divorcing is Not Advisable?
Yes. If one spouse has a history of domestic violence and 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 household should live separately to avoid any dangers that may not be direct abuse but could occur while the addict is under the influence.
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What Should I Do if I’m Considering Moving Out of the Home Before the Divorce is Finalized?
Call us at 909-323-7962 to request an initial consultation. Division of property can be one of the most complicated aspects of divorce, not to mention the most divisive. There may be good reasons to try and stay until the divorce is finalized. Our team of experienced divorce attorneys can assess your specific situation and advise you as to what will be your best protection.
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