Divorce Relocation

Should You Stay or Should You Go?

Key Considerations Before Moving Out During Divorce

Deciding to file for divorce is one of the most difficult choices you can make. If you’re approaching that decision, one of the first questions you may have is whether you should move out of your home before the divorce is finalized. However, moving out too soon can create a series of financial and legal issues. Understanding the potential consequences and planning your next steps is imperative.  Here are some key factors to consider before packing up:

Do You Have Access to Funds?

Moving out means taking on additional financial responsibilities, which can quickly add up. In many cases, individuals who move out of the family home end up needing to secure temporary housing, pay rent, and cover utilities on top of existing shared expenses, such as a mortgage or property taxes. Consider whether you have independent access to funds for these costs.

If your spouse is the primary breadwinner and you rely on them financially, it’s crucial to ensure you have access to funds or that spousal support or temporary financial arrangements can be established. Courts may consider your need for spousal support, but this process takes time. Additionally, spousal support will only be made retroactive to the date a formal motion is filed.  Be prepared for the financial strain moving out can cause, and consult your attorney to determine if seeking temporary financial orders is necessary.

Do You Have Children?

If children are involved, decisions about custody and where the children will live become even more important. Courts in California focus on the “best interest of the child” standard when determining custody. Moving out can sometimes impact your case. For instance, if you move out and leave the children in the family home, it could be interpreted as you conceding the primary custodial role to your spouse. In some cases, this can set a precedent that is difficult to undo later.

If you are the primary caretaker or want to request primary custody, remaining in the family home may be beneficial unless you and your spouse have agreed that the children may move out with you. On the other hand, if the living situation has become contentious or if there are concerns for your safety or that of your children, leaving may be the best choice, and temporary orders allowing you to do so may be required. Discuss with your attorney whether you should request temporary custody orders before moving.

Safety Considerations

In some situations, the emotional or physical safety of you or your children may make moving out the best, if not the only option. If domestic violence or threats are present, securing your safety should be your top priority. California allows for restraining orders, including orders that can mandate the abusive spouse to move out of the home. If safety is a concern, seek legal advice immediately and consider filing for an emergency protective order.

Who Will Pay the Mortgage or Rent?

Another major factor to consider is who will be responsible for the mortgage or rent after one spouse moves out. If you leave the family home and stop contributing to these payments, it could create tension and impact negotiations.

While you may have an argument that the party who remains in the home should be obligated to pay the use value of that home, in California, community property laws mean that both parties may still be equally responsible for joint debts, even if one spouse moves out. Ideally, you and your spouse can reach a temporary agreement regarding who will pay the mortgage or other major bills during the divorce. If that’s not possible, temporary court orders may need to be requested.

Moving out does not relieve you of these financial responsibilities. Even if you’re no longer living in the home, the court may still hold you accountable for part of the mortgage or rent. Failing to pay could affect your credit or even become an issue in property division discussions later on.

The Impact on Property Rights

If you’re concerned that moving out might mean losing your right to the family home, it’s important to know that this isn’t necessarily the case. Under California’s community property laws, it is presumed that both spouses have an equal claim to all marital property, regardless of who moves out. Moving out doesn’t waive your right to an equitable division of any community property interest in the home during the divorce process.

Creating a Formal Separation Date

In California, the date of separation plays a crucial role in dividing marital property. This date is often marked by one spouse moving out of the family home and signaling the end of the marital relationship. From the date of separation onward, any income, debt, or property acquired by either spouse is typically considered separate property. Moving out can help create this formal separation, but it’s essential to document this carefully.

Before moving, you should discuss the timing of your separation with your attorney, as this can have serious financial and legal implications during your divorce.

Conclusion

Moving out is a significant step when starting the divorce process. While it may seem like a simple decision, it carries complex financial and legal consequences. Before deciding whether to leave the family home, take the time to evaluate your financial resources, the potential impact on custody arrangements, the division of responsibilities such as mortgage or rent payments, and of course, your own personal safety as well as that of your children’s.

If you’re considering a divorce and are unsure whether you should move out, consult with an experienced family law attorney. Our firm can help you navigate these challenging decisions and ensure your rights and interests are protected throughout the process.

At Mello & Pickering, LLP, we are devoted to helping our clients navigate their family law case. We are able to help parties decide which course of action is best for them.  Call us at (408) 288-7800 to set up a 30-minute telephone conference, or schedule a one hour in person meeting to discuss your options.