Most married couples own a home where they live as a family. Under California community property laws, a house purchased during a marriage belongs to both spouses. The only way a house can be treated as personal property is if it was purchased before the marriage or was put under one name.
You cannot be forced out of your home during a divorce. Although some people end their relationships civilly, most divorcing couples are not on good terms with each other. Living with a person you are divorcing can be uncomfortable. If your relationship is toxic or abusive, remaining in the same home could harm the children.
You will need the guidance of a skilled family law attorney if you are unsure of the right decision to make for your living situation. Your lawyer will help you understand your options and make a decision that suits your best interests.
Moving out of the House During a Divorce
The family home is classified as marital property during a divorce. Therefore, each spouse has the right to stay home during the divorce proceedings. Whether or not you decide to leave the house is your decision. However, some circumstances may make it difficult for you to continue living together.
There are circumstances under which you can legally evict the other spouse, including:
Domestic violence
In California, domestic violence is a serious offense. You may be able to evict your spouse from the home if you have clear evidence to show domestic violence. Domestic violence includes child abuse, spousal battery, and corporal injury to a spouse.
When there are domestic violence issues, you can obtain an emergency protective order requiring your spouse to leave.
When the Family Home is Considered Separate Property
Your marital home is considered joint property when purchased during the marriage. However, if you acquired it before the marriage or your partner's name is not on the title deed, you can evict them.
Benefits of Moving Out of Your Home During a Divorce
When you purchase or build a home with your spouse, you hope to live there for the rest of your lives. Moving out of your home because of a divorce can be traumatizing. However, most divorcing couples do not get along. Moving out of the home with a pending divorce does not remove your right to part of the home.
The following are some benefits of moving out while your divorce case proceeds:
Reduce Conflict
When a relationship ends, anything you do could result in a heated argument. Some of these arguments could end badly for both of you. Divorce is very difficult, and adding conflict could take a toll on your emotional well-being. When you live apart, you can amicably solve the case without going to court.
You Receive Support
The issue of spousal and child support is significant in divorce cases. If you continue living with your spouse during the divorce proceedings, the court will not order any support. This is because the judge assumes that your spouse pays the household bills and gives you the support you need. However, if you move out, you can seek a child support or spousal support order before the divorce case is settled.
Lower Chances of Domestic Violence Allegations
Divorce cases are complicated. Issues like child custody and visitation are key. The judge will scrutinize your life and criminal history before giving you custody or visitation rights. You could open the door to false allegations of domestic violence if you remain in the same household with the spouse you are divorcing.
A misunderstanding or accidental incident could be reported as domestic violence as your spouse attempts to have the upper hand in the child custody battle.
You Can Access your Children Separately
The court will not issue an order or grant child visitation when you decide to live with your soon-to-be ex-spouse while undergoing divorce proceedings. You both will continue to have normal access to the children. When parents are not on good terms, the aftermath of the strained relationship can affect the children.
How you act around the children during the divorce can affect the court’s decision on custody matters. If you move out of the shared home, you and your spouse will have separate times to spend with the children.
Start to Move on
No one anticipates their marriage ending in divorce. Therefore, the situation can be emotionally draining for you and your spouse. There is life after divorce; the earlier you move out, the faster you can put your life back together and move on. Moving on could be difficult when you continue to live with your spouse during a divorce.
Setbacks of Moving Out During a Divorce
Although moving out of your home allows you to move on and avoid further friction with your spouse, the decision is not always the best. The following are some disadvantages of moving out while your divorce is pending:
Liability for Support
The family court aims to ensure children's stability even during a divorce. Therefore, the children will not be required to move from their home. You will be responsible for paying child support and alimony if you earn more than your spouse. When you find a new place to live, you could face difficult financial times. This is because you will be responsible for maintaining two households.
If you are ordered to pay child support while your divorce case is pending, you can avoid financial struggles by moving in with friends or family. This saves you the cost of living until the divorce is settled.
Mortgage Payment Issues
You will not lose your right to the home when you move out with a pending divorce. However, when your spouse remains in the home, they must continue paying the mortgage and property taxes. Your credit score could suffer significantly if your spouse does not pay the mortgage. In this case, you must take them back to court or attempt to sell the house. This means you will undergo other court processes, which can be challenging for a divorcing couple.
Child Custody Issues
If you move out before making a custody arrangement, it could be difficult to see your children. Additionally, an attempt to take the kids could be met with child kidnapping charges. Being separated from your children while going through a divorce can be difficult.
Lose Control of the House
Moving out of your house during divorce proceedings will put your spouse in charge of it. Therefore, they will control everything that happens. Fighting over it could be easy if you can only afford to maintain the home. However, if you can both pay the mortgage, the spouse who remained in the house may have the upper hand.
How to Protect Yourself When Moving Out During a Divorce
The decisions you make before and during your divorce could impact the settlement you receive and other aspects of your life. You can move out if remaining in the home you shared with your spouse is unfavorable for your mental and financial health. Moving out of your house is a serious decision that should be discussed with a reliable family law attorney.
You should consider the following tips to protect yourself and your interests:
Solve Your Custody Issues
If you have dependent children, moving out of your house during divorce proceedings would not be wise. Moving out, in this case, can ruin your chances at custody. Although living with a spouse you are divorcing is tense, you can try other alternatives like house sharing and bird nesting.
A parent cannot take children out of their home during a divorce. Attempting to move the children out of the home or across state lines could be viewed as a vengeful act that hurts the custody case. If domestic violence involves the children, you could seek a restraining order that prevents the other parents from harming you and the children.
If living in a house during a divorce is unbearable, you can move to a location where you can easily access your children. You must ensure that the arrangement is made before you take this action. If you move to an area where you cannot accommodate your children, your parenting time will be reduced significantly.
When the other parent spends more time with the children, they could have the upper hand in the hearing. Therefore, you should arrange to spend time with your children before packing up the family home. If you can communicate civilly with your spouse, you could agree to a temporary parenting plan.
You should be clear about wanting joint legal and physical custody of your children from the beginning of your divorce proceedings. Changing the nature of your custody arrangement as the case progresses could be difficult. If you settle for less initially, you could lose your right to spend time with your children even when the divorce is finalized.
Protect Your Financial Interest
The decision to move out of your house during a divorce is difficult. However, many circumstances could force someone to make this decision, including a volatile environment and disagreements with their spouse. Your financial well-being is a critical part of a divorce. In California, the family home is marital property subject to equal distribution.
There are many ways a bitter spouse can hurt your financial interests. This includes maxing out your credit cards and withdrawing all money from your joint accounts. The following are ways you could protect your finances before moving out:
- Cancel the joint credit cards. You will be responsible for credit card debt if you have joint credit cards with your soon-to-be ex-spouse. If you leave home and stop contributing to household expenses, your spouse can accumulate credit card debt, impacting your credit score later. Before you leave the house, you should cancel all the credit cards you share.
- Safeguard the joint bank accounts. An angry spouse can withdraw all the money from your joint bank account, leaving you in a serious financial struggle. Immediately after filing for divorce, you should withdraw your share of the joint accounts and inform your spouse of the move. Taking half of the money from your joint account is legal as long as you can prove your right to the money.
- Cut some expenses. Sometimes, you will be responsible for contributing to other household expenses even when you move out of the house during a divorce. However, you should agree with the spouse who remains in the house to cut down on unnecessary expenses.
- Avoid contributing to retirement accounts. Your spouse is entitled to some of your retirement benefits after your divorce. If you stop contributing to the retirement scheme, you will increase the amount you receive in your paycheck. You can stop your retirement plan contributions by asking your employer for the forms needed to cancel the contributions.
Protect your Property
Even on good terms with your spouse, divorce can bring out the worst in someone. Divorce is a long and complicated process. You will need numerous documents to solve all the divorce aspects, including child custody, property division, and spousal support. Most people leave their homes during a divorce when the situation is in dispute.
In this case, your spouse can deny you access to the house once you leave or destroy your property. The right outcome in your divorce may heavily rely on the following documents:
- Loan documents and credit history
- Insurance policies
- Bank statements
- Retirement accounts
- Real estate records
- Property deeds
Your inability to access these documents can make the divorce challenging. As you leave home, you should collect your records and papers and place them in safe storage where your spouse cannot access them.
Sometimes the spouse who remains in the house can destroy it or falsely claim destruction against you. Therefore, you should catalog the property before you leave. This involves taking photographs or a video of the home in the condition in which you left it. When you catalog the house, you must ensure the date is visible.
Alternatives to Moving Out During a Divorce
Sometimes, you and your spouse drift apart without bad blood. If you can communicate civilly during your divorce proceedings, neither of you has to move out. Instead, you can explore the following options to ease the financial burden and make parenting easier:
Bird Nesting
The biggest concern you will have as you divorce your spouse is the divorce's impact on your children. The days following the separation and divorce can cause the children emotional distress, anxiety, and anger. How you manage your parenting time, and custody could impact the child’s well-being.
Bird nesting is a custody arrangement where children remain in the family home, and parents take turns staying with the children. This arrangement will be effective if both parents move out and return when it is their turn to spend time with the children.
This is the most beneficial arrangement you can make when you and your soon-to-be ex-spouse communicate properly. Additionally, if you have very young children, this arrangement ensures their environment does not change. With this arrangement, no parent spends more time in the home than the other, and the family home's division can be easier during a divorce settlement.
House Splitting
If your family home is large enough, you can divide it so that each spouse has their own side of the house. This helps avoid constant interactions and can reduce conflict. Housesplitting is a great way for parents to stay home and spend time with their children. This gives you an equal chance during custody battles.
House splitting is only for some. You and your spouse must be willing to communicate effectively and respect each other’s time with the children. Before you decide on house splitting, consult your family law attorney to ensure the decision suits your best interests.
Find a Skilled San Diego Family Law Attorney Near Me
Separation and divorce can be challenging for you and your family. A significant issue for most divorcing couples is their living situation. You and your spouse would have joint ownership if you purchased a house during your marriage. Therefore, you can remain in the home until the divorce is settled.
Finding a new place to live or leaving your children can be tough. Therefore, some people are compelled to remain together in the house. Not all divorcing couples can continue to live together peacefully. Remaining in a house with your spouse may save you money and allow you to be near your children. However, it can still be a source of domestic disputes that will impact you and your children.
If you are worried about your living situation and losing your home for moving out during a divorce, you will require the expert legal guidance we offer at San Diego Family Law Attorney. Your lawyer will discuss different alternatives to your situation and help you protect your interests in the divorce. Call us today at 619-610-7425 to discuss more details of your case.
