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Should I Stay or Should I Go? - The Top Five Things to Consider Before Leaving the Marital Home During Divorce

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If you own a home and are contemplating a divorce, you may be wondering, "should I move out of the marital home?"  As a practical matter, it is likely that at some point one or both parties will need to leave the home, but what should be done in the meantime?  The decision to leave the home is often a reactionary, emotional one.  With emotions running high, and trust at an all-time low, you've got all the ingredients you need for conflict.  At first blush, leaving the home may seem to be the simplest way to reduce conflict.  But as is generally the case, decisions made on emotion alone rarely turn out to be wise.  Instead the decision to stay or leave the home should be based on logic and strategy.

"Should I stay or should I go" by the 80's band The Clash frequently pops into my mind when I'm asked by clients if leaving the marital home makes sense for their situation.

 

"Should I stay or should I go...

If I stay there will be trouble...

if I go there will be double".

Now of course The Clash wasn't singing about marital homestead rights but the verse can and does apply to the question before us...then again, so does the line's inverse.   Staying in the home with a spouse you no longer wish to be married to can bring its share of "trouble" in the form of uncomfortable interactions, arguments and in extreme circumstances the potential for physical altercations and Order for Protection actions. The "trouble" in leaving the home may come in reducing the strength of your arguments on issues within your divorce such as child custody.

Let's be honest, there is no one course of action that can make divorce trouble free, but we try to make decisions to mitigate trouble when possible.  At the end of the day it's a cost basis analysis:   1) Is there any advantage to remaining in the marital home during the divorce process, and if so, 2) Is the advantage of staying and enduring an uncomfortable situation in the short-term worth the benefits perceived to be gained in the long-run?

Whether it is more advantageous to stay in the marital homestead or leave will depend on the particular facts and circumstances of your case.  Speaking with a Minnesota family law attorney about your goals and objectives is the best place to start.  So while you seek out legal counsel, consider the following:

  1. Emotional and Mental Wellbeing Comes First.

Living under the same roof as your spouse during divorce can be uncomfortable or down right unbearable.  Where spouses are able to manage their emotions and behavior in the interest of an amicable split, the emotional stress of uncomfortable situations or minor arguments while living together may be advantageous.  However, where spouses find themselves in frequent and uncontrollable arguments, any perceived strategic advantage to remain in the home may be outweighed by the stress and anxiety caused by living every day in a high conflict situation.  Stress and anxiety caused by high conflict divorces have the potential to seep into other areas of life including relationships with children, friends and family, and can also affect parenting and workplace performance.  In such situations a spouse may find the best course of action is to leave the home.  As always, if physical safety is a concern, place priority there and call your local crisis center for assistance.

  1. Are you forfeiting any property rights to the marital home?

Absolutely not. Understand, by leaving the marital home you are not giving up any ownership rights to the marital home.  Until the court has issued a final order regarding the disposition of your home, your rights remain equal to those of the spouse remaining in the home.   Understand that by leaving, the remaining spouse may develop an expectation of privacy with regard to the home.  Upon separating, parties tend to begin preparing for life without their spouse, and this includes re-establishing the home even when the physical location doesn't change.  Just as you would not want your spouse coming and going at will from your new home, the remaining spouse will feel very much the same about you entering their home.  So while you have every right to enter the marital home, you can expect the remaining spouse to put up a fight.  As a result, you can also expect to lose a certain degree of control over the upkeep of the home and over household goods and furnishings that will need to be divided as part of the divorce.  To ensure that your interest in this property is preserved, you will want to take inventory of the condition of your home and its contents.  At SJS Family Law, I counsel clients to make a detailed list, take photos, and when possible video record the exterior and interior of the marital home prior to leaving.

  1. Can you be awarded the marital homestead if you leave it during the divorce process?

The answer is, it depends.  Like any question in family law, answers to questions almost always depend on analyzing a number of factors.  In the scenario of who is awarded the house the answer may depend on a number of factors including but not limited to: whether the spouse wanting the home can afford it; whether the spouse with a majority of parenting time wants to remain in the home with the children and the potential disruption to the children by uprooting them from the marital home; or whether the spouse wanting the home has the ability to refinance to remove the other spouse from the mortgage. 

  1. Can you afford to leave the home?

It depends on your financial situation. Bills incurred by the marriage to maintain everyday living such as mortgage/rent, utilities, and related bills continue to be the obligations of both spouses regardless of whose names those bills are in.  In many instances it takes both spouses' respective incomes to support the marital household.  Supporting two separate households with those same incomes can be challenging.  In situations where one spouse is the main or sole source of income for the marriage they may be responsible for paying most or all of the living expenses of the other spouse who remains in the marital home while paying the living expenses of their new home.  At SJS Family Law, I counsel clients to review their finances carefully and budget before making any decision to leave the home.

  1. Will leaving impact your custody case?

The answer is, it just might.  Spouses who move out of the marital home are rarely in a position to obtain new housing of comparable size and quality to that of the marital home for any number of reasons.  Whether it's due to financial limitations or insufficient time to locate comparable housing, the spouse who leaves often finds themselves in housing they consider to be temporary and less desirable than the marital home.  In these circumstances it is not uncommon for the spouse who leaves to agree that the children will spend a majority of the time with the remaining spouse in the marital home pending acquisition of more suitable housing or finalization of the divorce process.  And while that decision may very well serve the best interest of the children during the temporary transition, the impact of this decision to a final custody and parenting time decision may not be in line with the goals and objectives of the spouse who leaves the home.  When making decisions about custody and parenting time, the courts are concerned about what is best for the children, not what is best for parents.  Judges place a high priority on reducing the impact of divorce on children by keeping things as stable and consistent as possible.  If the temporary living arrangements seem to be working fine, a Judge may find that keeping the status quo makes sense and that requiring the children to endure another transition would be harmful to them.  While custody and parenting time decisions involve an analysis of many more factors than just where the children are accustomed to living and on what schedule they have been exercising on a temporary basis, it still remains that this will be an additional hurdle the spouse who leaves will have to overcome.

-Stephanie Sternke is founding partner of SJS Family Law, a Minnesota-based law practice focused exclusively in family law.

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