August 21, 2018

Divorce and the Family Home – A House Divided

Divorce and the Family Home – A House Divided

One of the awkward situations for the divorcing couple, unless they have separated, either voluntarily or by court order, is that they continue to live together in the same house until the divorce is final.  One spouse doesn’t have to move out in order to start a divorce or just because a divorce is pending.

There are many reasons why a divorcing person would endure discomfort or misery in the family home rather than move out.  Some are financial – there isn’t enough money to support two residences.  Some are practical – a person doesn’t want the disruption or expense of moving once while the divorce is pending and again when it is final or doesn’t have family or friends to stay with.  Others are emotional – moving out can be difficult for the spouse who doesn’t accept the divorce or fears separation from the children.  Some will stay to hurt, harass or intimidate the other spouse.

Fear of giving the other spouse an advantage in the divorce often prevents people from separating even when the environment at home is toxic.  But moving out doesn’t necessarily mean abandonment of the other spouse, conceding any claim to the house, or giving up custody of the children.  There are, however, disadvantages that need to be considered.  If the spouse who remains asks the court for an order of exclusive possession, it may be less reluctant to grant the request since the other spouse has already left the home.

Many divorcing people are surprised to learn that the law provides only very limited reasons for forcing one spouse to move out of the family home before the divorce is finalized.  For example, a history of domestic abuse, substance abuse or other illegal activities occurring in the home, or other behavior that puts the other spouse or couple’s children at genuine, not just imagined, risk of physical or serious emotional harm.  Typically, a judge won’t order a spouse to vacate the house simply because they are having an affair, ignore the children, or is a bully.  Conversely, the law doesn’t reward a person with the right to live in the home just because they pay the bills or the title to the house is in their name only.

Getting a judge to order one spouse to move out isn’t automatic.  There are specific, sometimes time consuming and expensive, court procedures which must be followed typically including a court hearing.  And if there is a less drastic way to keep the home environment reasonably peaceful, such as by allocating the home between the spouses by days of the week or rooms, judges are inclined to order these alternatives.

Whether you voluntary move out of your home before the divorce is final or ask the court to force your spouse to leave, the consequences can be significant and long lasting.  Consider consulting with an experienced divorce lawyer to evaluate your particular situation before deciding – the earlier the better.



This article was first published by RJ Media in the August 16, 2018 edition of the Cheshire Citizen.

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