Who Should Move Out of the Family Residence During a Divorce?

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Many married couples own property together, and the question of what should happen to the family home can become a contentious one in divorce. Unfortunately, as soon as a couple decides to separate or split up, a decision will need to be made as to who should stay in the family home even before the divorce is granted. This means that you may need to decide who should stay in the family house while the divorce is pending and then separately tackle the issue of who should keep the home after the divorce is finalized.

Making the decision of who should stay in the home and who should move out involves considering a number of different factors that are specific to your divorce and family situation. You should consult with an experienced Walnut Creek divorce attorney to ensure that the right choice is made for your personal situation.

Who Should Move Out of the Family Home?

The choice of who should leave the family house while divorce is pending is different in every situation. First and foremost, it is important to realize that under the law, neither spouse really has to leave. In Walnut Creek California, you both have a claim to the house and until the divorce settlement specifies who gets to keep it, you both have a right to continue to live there.  This means that if you want your spouse to leave, you’ll either need to get a court order requiring him or her to do so or you will need to convince him that it is the right choice to go.

While you both have a right to stay in the house, though, this does not mean that you will want to continue to live together as you negotiate the terms of your divorce. If you are uncomfortable in your home and your spouse will not leave, you can be the one to move out if you want to and doing so will not jeopardize your legal rights to the house.  Before proceeding with this option, consider the costs of living in a separate home or apartment and carrying two households. Can you afford to do so? Would you prefer that situation rather than continuing to stay in a residence with your spouse until the divorce is final?

Considerations in Who Should Move Out

In a best case scenario, you and your spouse will simply decide together who should move out pending divorce. Things to consider in making this choice include:

  • Who is likely to keep the home after divorce based on who can afford to pay the costs of the home
  • Who is going to be providing care for the kids (it is usually best for the children to remain in the family home)
  • Whether remaining in the home is safe (avoiding abuse for you and your kids should always be the first priority)

If you and your spouse cannot agree, you can petition the court to try to get an order for your spouse to leave. Outside of cases of abuse, the court is not likely to command your spouse to move out prior to the divorce settlement and the final dissolution of marriage. This means you may be left with a choice of sticking it out until the marriage ends or moving out yourself  if you find you cannot continue to live in the home and if the court will not make your spouse leave.

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