On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Friday, July 19, 2013.

Many clients going through divorce are unsure if they should stay in the marital home, or move out. Does staying help you? Does leaving mean that you are giving up your rights? Will it be harder to enter an agreement?

The marital home is many things. First, it’s a valuable asset, maybe your most valuable asset – assuming your house isn’t underwater. Second, the home is a place for you to live in . . . with your children if you have them. Third it is an important, and possibly big part, of the final settlement.

Marital Asset

The home remains a marital asset, which is subject to equitable distribution, regardless of who lives there during the divorce process. If a home is marital then both parties have equal rights to buy – out the other’s share. Both may also be on the hook for liabilities.

Children’s Issues

Until a parenting plan in place, if you are interested in maintaining a meaningful relationship in your child’s life, leaving the home before a timesharing agreement is entered may show a lack of real interest in the child’s daily life. Moving out can also create the appearance of a new ‘primary parent’ by default. Worse, if the process takes a long time, it creates a new status quo.

Settlement

Staying in the same home could create an incentive to negotiate a final settlement because living with your soon to be ex-spouse is very uncomfortable. However, if someone moves out, the person remaining in the home is sitting pretty, and may be less inclined to settle.

Also, the person leaving may still have to pay for the home’s expenses while also paying for a second place. It can be costly to maintain two households, and prohibitive expensive when you know that the process will take a long time.

If you are going to leave, you should consider the following before moving:

  • There should be some discussions about maintaining the home.
  • Decide who is paying for which expenses.
  • Inventory the personal property, things like artwork, LP records, clothes, tools, silverware etc.
  • Create boundaries for when the ‘out-spouse’ can use and enjoy the home after leaving it. Create a schedule everyone can agree to.
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