Is It Okay to Move Out of the Marital Home Before the Divorce Is Finalized in California?

Divorce tears a family’s home life into pieces. But unlike some states, California does not require divorcing couples to live apart. For the sake of children, and for financial reasons, couples often continue to live together during the divorce process.

Is there an advantage to staying in the marital home? If one party moves out, are they at a disadvantage when it comes to divorce terms? Every divorce situation is unique, but there are some general issues to consider when deciding whether to move out of the family home before a divorce has been finalized. It is a good idea to consult an attorney before taking steps to move out of home because that action can have a significant impact on many aspects of the divorce process.

Moving Out Can Affect Your Relationship with Your Children

In custody decisions, courts are not supposed to favor one spouse on the basis of their parental label as mom or dad. However, courts look carefully at the role of caregiver, and often find that it is in a child’s best interests to be with a parent that meets the child’s daily needs on a regular basis. If you, as a parent, are usually the one to put the kids to bed at night or make breakfast and get the kids off to school each day, moving out of the home will likely impact your ability to continue with these daily rituals. If you have the option of staying in the home with the children, consider whether the benefits of leaving the home outweigh the loss in caregiving opportunities and whether there are ways to continue in the caregiving role.

Another way to protect your relationship with your children is to establish a plan where the children stay in the home and the parents alternate staying in the home with them and staying in another location. While this arrangement is not feasible for many people on a long-term basis, during the divorce process it can provide stability for the children and help parents feel more secure in their parental rights.

Moving Out Does Not End the Obligation to Pay for the Home

A spouse who moves out during the divorce may need to pay for their own new living arrangements while continuing to contribute to the cost of the family home. In fact, if both spouses are on the mortgage, they both continue to be obligated to make mortgage payments even after a divorce is finalized, until the property is sold and the mortgage is paid off or one spouse takes out a new mortgage in their own name.

But even if the marital home is rented and there is no mortgage, a spouse who earns more money may have an obligation to help support the other spouse during the divorce process, and if there are children, both parents are required to contribute to meeting their housing needs.

Moving Out Should Not Make it Less Likely That You Will Receive the Home in the Divorce Settlement

The underlying property rights with respect to the family home should not be affected by which spouse is living in the home during the divorce process. The property interests are determined by whether the home was purchased before or during the marriage, and whether funds used to pay the mortgage and other expenses were community property or one spouse’s separate property.  A spouse might move out of the home during the divorce but then end up with the house later, either through an agreement between the spouses or by a judge’s determination.

Moving Out is Sometimes Legally Required

When there are allegations of domestic violence or other issues that could pose a safety risk to the other spouse and children, the court may issue an order requiring you to leave the home and stay away. If there is a court order requiring you to keep out of the house, it is vitally important to obey the order, even if it is unfair. Your attorney can help you contest the order and possibly change it. But acting on your own can cause you to get into legal trouble and damage your efforts to obtain advantageous terms in your divorce settlement.

Have a Written Agreement Before You Move Out

When parents are in constant conflict, staying in the same home may not be a wise move. Having one spouse move out can ease the stress and it also makes it easier to establish the date of separation. However, to avoid allegations of abandonment and protect parental rights and possibly other rights as well, it is a good idea for both spouses to have an agreement in writing regarding separate living arrangements.

Talk to Your Attorney Before You Move Out

At Holstrom, Block &  Parke, APLC, our Certified Family Law Specialists and associates know that there are often good reasons for moving out of the marital home. But it is still wise to review the issues from a legal perspective before taking action.

Schedule an appointment with our team today to discuss the living arrangements that make the most sense during your divorce.


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