A Few Things To Consider Before You Move Out Of The Marital Home

by McConnell Family Law

marital home

A divorce is often a highly stressful event, and continuing to live in the same home with your spouse may seem unbearable. During this turbulent time, it is common for one spouse to either volunteer or be asked to move out. While it is understandable to want to move out to avoid conflict (especially in a divorce case where children are involved), leaving the marital home while the divorce is pending can have serious consequences. There are a number of things you should first consider before filing a divorce and moving out of your house.

First, under Connecticut law you have no legal obligation to move out of your home. When a divorce is filed in Connecticut, automatic court orders immediately go into effect. (CT Practice Book § 25-5.) The purpose of these orders is to maintain the “status quo” during the divorce. One such order expressly states that neither spouse may deny the other spouse use of their current primary residence. As long as you were living together at the time the divorce was filed, your spouse cannot force you to move out without a court order. If you nevertheless prefer to move out voluntarily, it is essential to seek the help of a skilled Connecticut family law attorney who can provide legal advice about how moving out of your marital home can have an impact on the outcome of your divorce.

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Exclusive Possession

While it may be difficult, or even impossible, for your spouse to force you from your home (absent domestic abuse allegations), it is much easier to keep you out after you have left voluntarily. After you move, your spouse may file a motion for exclusive possession of the home. (CT Practice Book § 25-25.) An award of exclusive possession is not determinative of either spouse’s claim to the home or its contents on a permanent basis. However, if granted, it will bar you from entering your home for the duration of the divorce proceedings.   This creates a significant obstacle when you need to retrieve important items from your home.

During the course of the divorce proceedings, you will be required to provide a multitude of financial documents and other relevant information. These items are usually left behind in your home when you move out. While your attorney can request these items during the discovery process, it would be less costly and more time-efficient if you were able to obtain these documents on your own.

You will also have no access to personal items left within your home. While it is prohibited under the automatic orders, spouses have been known to sell, damage, or destroy personal items belonging to the other spouse. This can occur immediately, whether there is exclusive possession or not. To make matters worse, it is often difficult to prove this transgression. Some evidence must be offered to prove the personal property existed, to begin with, and people usually lack the forethought to take photographs or inventory their personal items before they move out during a divorce. Therefore, you should consider how much you trust your spouse with your personal and/or valuable possessions before you move out.

Financial Considerations

Moving out of the marital home before your divorce is final can also hurt you financially. While the divorce is pending, you will be required to continue making your usual financial contributions to the household. This means that if you were responsible for paying 50% of the mortgage, utilities, insurance premiums, tuition, etc., you will continue to be responsible for those payments until the divorce is finalized. Also, if you are the higher-income spouse, you may be required to pay temporary spousal and child support. Consequently, if you rent an apartment or purchase an additional residence, you will find yourself supporting two households on your single income. For this reason, a spouse who moves out generally ends up in a less desirable living situation.

Child Custody

If you have minor children, moving out of the marital home may compromise your custody rights. Leaving your children behind, without a written agreement for temporary custody and visitation could create a problem.   A judge could view your actions as an indication that you do not need to live with your children and be involved in their day-to-day lives. Moreover, leaving your children in the care of your spouse may effectively concede the status of primary caretaker to your spouse. This could all weigh against you, particularly if custody is contested.

More importantly, any “temporary” custody and visitation arrangement in place while the children live in the marital home may become permanent if the judge determines that changing the current arrangement would be too disruptive for the children. For purposes of child custody and visitation, judges often prefer to maintain the status quo. Unfortunately, a new and less favorable status quo is created when you move out of the marital home.

Consideration Potential Consequences Course of Action
Exclusive possession of home Spouse may file for exclusive possession, barring you from entering the home during divorce proceedings Consider staying in the home, or filing your own motion for exclusive possession
Access to personal items Spouse may sell, damage, or destroy personal items Consider how much you trust your spouse with your possessions before moving out
Financial contributions You may be required to continue making financial contributions to the household Consider how supporting two households on a single income may impact your finances
Child custody Moving out may compromise custody rights, and any temporary custody and visitation arrangement may become permanent Consult with an attorney to make appropriate custodial preparations before leaving
Domestic abuse Moving out may be necessary for safety reasons Temporarily moving out of the home during the process of securing a protective order and exclusive possession may be the safest course of action

What Are My Rights If I Leave the Marital Home

When considering leaving the marital home during a divorce, it is important to understand the legal implications and potential consequences. Under Connecticut law, you have no obligation to move out of the home during a divorce, and doing so voluntarily may limit your access to personal items and financial documents necessary for the proceedings. Additionally, leaving the marital home can have financial implications as you may still be responsible for making usual financial contributions to the household, and supporting two households on one income can be challenging.

If you have minor children, leaving the marital home without a written agreement for temporary custody and visitation could potentially compromise your custody rights. It is important to seek the advice of a family law attorney to make the appropriate custodial and financial preparations before you leave. This includes making copies of important documents, photographing and inventorying valuable assets and property, and establishing a temporary child custody and visitation agreement.

In cases where domestic abuse is involved, leaving the marital home may be necessary for your safety. If this is the case, it is important to take the necessary steps to secure your safety, including asking the court for a protective order and exclusive possession.

When You Should Move Out

Despite everything discussed, there are circumstances when you should move out of the marital home. The most obvious is when domestic abuse is involved. If there is domestic abuse in the home (physical/verbal) you should do whatever is necessary to secure your safety, including asking the court for a protective order and exclusive possession. Temporarily moving out of the home during this process is the safest course of action.

In addition, moving out may be the best option in a high-conflict divorce where children are involved. If you voluntarily move out to benefit your children, a judge will not hold it against you. In fact, if the judge finds that your leaving served the best interests of the children, the judge may consider that act as a factor when making the custody or visitation order (Connecticut General Statutes § 46b-83 (b)). Nevertheless, voluntarily moving out under these circumstances should be a last resort. A better course of action in many circumstances is to consult with an attorney and thereafter file your own motion to maintain exclusive possession and force your spouse to leave instead.

What To Do If You Must Move Out

If after careful consideration, you decide to move out of the marital home, you should consult with a family law attorney to make appropriate custodial and financial preparations before you leave.  An attorney will advise you and help you to complete the following tasks before you pack up and go:

  • Make copies of important documents.
  • Photograph and inventory valuable assets and property.
  • Choose a location to move that is close to your children and their schools.
  • Establish a temporary child custody and visitation agreement, preferably court-ordered.

In Connecticut, the attorneys at McConnell Family Law Group are here to help you resolve all of your family law issues and concerns. To schedule your appointment and learn more about your options, contact us today at (203) 541-5520.

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