Family Matters

Should I Stay or Should I Go

The decision as to whether or not to leave the marital home upon the desire to divorce generally depends upon several factors.

1. The first point to understand is that it is not considered “abandonment” to leave the home. If you desire to retain the marital home in the divorce it is generally not a good idea to leave unless you are forced to leave because of an abusive situation. In those circumstances, it is likely you can file a protection from abuse action and seek to have your spouse forced to vacate the home.
2. The second factor to consider is the custody arrangements for any minor children. If you want to leave the marital home because you have a new place to live you want to make sure you have adequate space to have custody time with your children. You also want to make sure you have an agreement with your spouse as to a custody schedule, preferably in writing, before you leave the marital home. In the event that there is no agreement, and you would like to move and possibly take the children with you, you should consult with counsel immediately to discuss options as you will need to file a Complaint for Custody.
3. A third factor to consider is the economic circumstances. If you want to leave the marital home and you are the financially superior spouse you need to consider that you will have to pay support to your spouse in addition to any expenses you will incur in your new place. When there are minor children the support will be both child support and support for the spouse. On the other hand, if you are the financially dependent spouse you can vacate the marital residence and seek support from the financially superior spouse who remains in the marital home. This situation might be difficult for the financially superior spouse who is now left to pay all the bills for the marital home and support to the other spouse. Sometimes both parties vacate the home because neither wants to be responsible for the bills – then who is responsible? Generally, both parties are responsible but the division of expenses may be dependent upon the income disparity between the parties. It is important that you seek legal advice if you find yourself in this situation.

Ultimately you may both decide to remain in the marital home pending the resolution of the division of assets as it may not be economically feasible for either party to vacate pending a final divorce. The time it takes to resolve your divorce could be lengthy and if you have minor children there is an option of having a “nesting” arrangement. This is when the children stay in the home and the parents alternate time in the home. This scenario maintains the status quo for the children until one party ultimately decides to vacate or the marital home is listed for sale. In order for this situation to work successfully each parent needs another place to live while not in the marital home. Some couples rent an apartment to be used by both parents when they are not with the children. This can be expensive and therefore is not always a viable option.

Should you be confronted with the decision of whether to leave or stay please reach out to one of our family lawyers for assistance.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.