Should You Move Out Before the Divorce is Final?

Few things are more uncomfortable than living with someone with whom you are not getting along. When “not getting along” rises to the level of “getting a divorce,” the discomfort level can get turned up to the max. An obvious solution would be to move out of the home you have shared together. Assuming that you can afford to, are there other reasons to consider staying put? Should you move out before the divorce is final?

The answer to that, of course, may vary depending on your circumstances. Let’s take a look at the pros and cons of moving out during a divorce.

Why You May Not Want to Move Out Before the Divorce is Final

One reason many people give for not wanting to move out is that they fear that they will be “abandoning” any claim to the marital home. You do not give up your legal right to be awarded the marital home in the divorce if you move out beforehand. That said, courts are generally inclined to preserve the status quo in divorce cases. So if you want to live in your marital home, but you move out during the divorce, it’s somewhat less likely that the court will turn your spouse out of the home and reinstall you there.

If you have kids, there is another reason to stay put if you can. Most of the time, the parent who stays in the marital home stays there with the children. If you leave, as a practical matter, you may end up seeing your children less during the divorce, and possibly in less comfortable circumstances. And, of course, if you are seeing your kids less during the divorce, there is a possibility that the court will continue whatever pattern you’ve established after the divorce.

Last, but not least, is the financial burden of moving out of the house during your divorce. If you move out, you will probably need to spend money on housing, unless you move in with family members (which may be less-than-ideal). Just because you have to pay for a new place, however, doesn’t mean you are going to get out of paying for the old one. And if you are the primary breadwinner, you may wind up paying the mortgage and utilities on a place you don’t get to live in. If that seems like a bitter pill to swallow, you may want to dig in your heels and stay put.

Why You May Want to Consider Moving Out Before Your Divorce is Final

Honestly, there are really only a few situations in which you might be better off moving out before your divorce is final. The primary one is if you feel that you are in physical danger if you remain in the house. Obviously, your safety must be paramount. But even if such a situation exists, you should not simply accept the need to move without question. Contact an experienced Utah family law attorney immediately to discuss protection from domestic violence and your rights in divorce.

You may also consider moving out if you have the financial resources to do so and the prospect of living with your estranged spouse for the duration of the divorce is simply intolerable. Even then, you should discuss your options with your divorce attorney before you start packing your bags.

Last, but certainly not least, you should consider the effect on your children if you and your spouse remain in the home together. If you cannot avoid arguing and the tension in the home is thick, you can be certain that your children are affected by it. Even if they seem to be acting as they usually do, or are even better behaved than usual, they may just be trying to avoid further upsetting mom and dad. For their sake, you may decide it is best to move out so that they can spend time with each of you in a more peaceful environment.

What if My Spouse Tries to Kick Me Out During the Divorce?

Legally, your spouse can’t force you to move out of the house in most cases—nor can you force them to move out. This is especially true if your spouse was the one who filed for divorce in the first place. If your spouse does ask you, or try to force you to leave, you should assume things are going to deteriorate quickly. At this point, there are some things you should do to protect your interests.

First, retain a divorce attorney if you have not already done so. You will want your attorney’s objective advice, especially if tensions escalate. Second, gather relevant financial documents you will need in your divorce, including paystubs, income tax returns, bank and investment statements, and other records of marital assets and their value. Keep copies of these documents outside of the house, preferably at your attorney’s office.

Also, to the extent possible, keep a record of your encounters with your spouse, especially if they are hostile or threatening. If it is possible to make an audio or video recording of their conduct with your cell phone without endangering yourself, you may want to do so.

Hopefully, things will not escalate from the uncomfortable to the intolerable while you and your spouse try to navigate your divorce under the same roof. You may want to take a look at our tips for sharing your home during a divorce. If you have questions about whether you should move out before the divorce is final, we invite you to contact our family law office.