Before you consider whether to take your stuff and move out of the marital residence you need to consider several things.
First, if there are children in the home, you do not want to move out unless you take the kids with you and that is the more different road to take. You want to make a determination as to who will get the children in the divorce. It is not an automatic that the Mom will be the primary custodian of the children in this day and age. I actually had an opposing counsel to a female judge that the mom should get the children because well. . .”she’s the mom.” Well most female judges in this day and age will disagree with that wholeheartedly. It was a sure bet that statement awarded my client — the father — custody of the children. That and several other factors led to the ruling obviously, but the point is dads get custody as well. So if mom tells you to leave don’t. You should not move out until a judge orders you to do so or you and your spouse have made agreements for the time before your divorce if finalized. In Indiana we call this provisional agreements or orders. Who gets to stay in the marital residence is one issue that is determined during the provisional hearing or provisional settlement conference. The courts generally want to keep the children in the marital residence so whoever gets the kids will likely get possession of the marital residence. The reasoning behind this is simple, we don’t want to disrupt the children anymore than they are going to be because of the divorce. Kids are comfy in their room, with their stuff, and with their daily routines. Not to mention if the children move with a parent, a new school may be in their future. Again, we want to keep things as normal as possible during the divorce proceedings.
Second, can your spouse afford to pay for the marital residence on their own and keep up the maintenance required of the marital residence. If the answer is no, then the other spouse should plan to move out or you may want to put the house up for sale, in which case you will both be looking for a new place. If neither can afford the home on their own, a sale is most likely in the future. Nevertheless, there is still the issue of who will be required to maintain the upkeep and payments on the marital residence until it sells. Obviously, if you are able to move in with a parent or friend and live for free this will allow you to keep making payments until it is sold. But we can overstay a welcome so this is only a short term solution.
Third, moving out can be a bargaining chip for something else you want. Let’s say you want more time with the kids, well you may be willing to move out in order to get your spouse to agree to your terms. It can be a powerful thing if your spouse really wants you to go. I had a case where the parties’ lived together during the divorce and the only reason we were able to finalize the divorce as quickly as we did, was because my client wanted the spouse out of the home so she could move on with her life. If the spouse had moved out earlier, my client would have been fine with holding out longer for her husband to agree on her terms. She agree to less just to get him out.
The bottom line is this: Don’t go anywhere or do anything until you have talked with an attorney or until a court orders you to go (or you make an agreement for the provisional aspect of the divorce.) Call Julie today to discuss your options in a divorce. 574.400.3623 or e-mail us for your consultation on divorce today.