ASK THE ATTORNEY: Can moving out before a divorce cause problems?

Depending on your living situation, children, and the conditions of a divorce, you or your soon-to-be ex-spouse may consider moving out of the shared home before the divorce is finalized.

Leaving the house might seem like the best thing to do to avoid any further discord, but can moving out before a divorce cause problems?

How Moving Out During a Divorce Impacts You

Many married couples own their home, and in most cases, it is their largest asset. If one partner moves out of the house before a divorce is finalized, it could lead to complications in how the court handling your divorce views the division of property, child custody, court-ordered support payments, and more.

Divorce is final, so it’s important to weigh the pros and cons of moving out before you decide to take that critical step.

How It Impacts Your Child Custody Claim

Not only will it reduce parenting time with your children, but moving out may affect your child custody claim. If the children continue to spend most or all of their time in the family home, or if the partner who moved out is unable to provide adequate accommodations for the child, then the court may give greater weight to the custody claim of the partner who stayed in the marital residence.

If there is not an equal division of custody between both parents or if the parents do not agree on a temporary parenting plan for the duration of the divorce proceedings, it can lead to expensive custody and child support litigation.

How It Impacts Your Finances & Property Division

The home is generally considered a marital asset subject to equitable distribution, and its value will usually be divided equally along with any other marital assets. It’s still possible that leaving the marital residence can affect equitable distribution, but every case is different, and there are a number of other factors the court can consider.

In New York State, if a partner leaves the marital home without an agreement in place, the court can issue an order requiring the partner who left the marital home to contribute to household expenses, including the mortgage on the residence. This could lead to a very difficult financial situation for the partner who moved out prematurely, as they will now have two sets of bills to pay for.

How It Impacts Your Access To Paperwork

Many divorces can be incredibly contentious, and it isn’t unheard of for one partner to deny access to, damage, or destroy the other partner’s possessions or important documents. Besides, when going through an emotionally fraught divorce, paperwork might be the last thing you think about. Remember, however, that divorces rely on all types of records, including:

• Bank statements;

• Insurance policies;

• Credit history & loan documents;

• Retirement accounts; and

• Other personal & financial documents.

Moving out prematurely may mean losing access to those documents, and your partner may even destroy them or remove the records from the marital residence, making your situation significantly more difficult. You may also still receive paper mail, such as account statements, at the marital residence, which will become harder to access. The same is true for any other personal possessions: clothes, jewelry, furniture, electronics, tools, etc.

Write up an inventory of the personal property of both spouses, including furniture, appliances, and any other high-value items. Take photographs of everything and have your partner sign the inventory, if possible. But take only smaller personal possessions if you leave, such as clothing and jewelry, unless a prior agreement is already in place.

Safety and security are paramount, so if there are any concerns about domestic violence, it’s best to play it safe. If your partner’s behavior is dangerous or violent, get yourself to safety and call the police right away. You can worry about how it will impact the divorce later, once you and the kids are safe.

How It Impacts Your Spousal Support Payments

If you are the primary source of household income, you may have to continue paying all or a portion of the bills on the marital home even after you move out. If you and your partner cannot agree on a temporary resolution regarding financial responsibilities, you can request the court make that determination by issuing an order for spousal support that is financially sustainable for both partners.

Domestic Violence in the House

Safety and security are paramount, so if there are any concerns about domestic violence, it’s best to play it safe. Get yourself and your children to safety if your partner’s behavior is dangerous, violent, abusive, or involves issues with drugs or alcohol. Leaving the marital home during a divorce will not affect your right to an equitable distribution of the marital home.

Is Moving out the Right Choice for You?

Moving out during a divorce is a big decision, so if you have any reservations, it may be advisable to discuss it with your family law attorney. They can advise you on any preparations you should make before walking out the door, which could save you a lot of money and trouble down the line. Schedule a consultation or get in touch today to find out how our experienced team at Tully Rinckey can help!

For years, Michael Belsky has been relentlessly fighting for the rights of Capital Region spouses, parents, and grandparents in virtually every aspect of family and matrimonial law. As a Partner at Tully Rinckey PLLC, Michael provides representation in matters relating to divorce, parental alienation, separation agreements, annulments, child custody, child support, modifications to child support and child custody, enforcement of divorce decrees, spousal maintenance, pre-and post-nuptial agreements, orders of protection and family offenses. He can be reached at (866)-264-0142 or at info@tullylegal.com.