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Moving out of the marital home: Should I do it?

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There may be no more uncomfortable situation for a married couple than continuing to live together after one or both of you have decided to file for divorce. The tension in the home can be thick enough to cut with a knife, and every interaction has the potential for further escalating the conflict.

In these situations, it certainly makes sense for one person to say that he or she will move out. However, such a decision should be considered carefully as to possible financial, property and especially parenting concerns.

Let's imagine you decide to move out to live with a friend after announcing you want a divorce. You think that doing so will give your spouse some space to cope with your decision and shield your kids from the constant fighting you assume will take place.

You may have every intention of regularly seeing your kids and may even discuss your plans with your ex. To you, it seems that moving out is in everyone's best interests.

However, if you and the other parent do not have a clear agreement (preferably one in writing, even if not formal) on how the child(ren) will be shared, you would be at a disadvantage later if the in-house parent tries to limit your access to the children. Since it is not considered healthy for the children to be witnesses to parents arguing, you can't do that. Once the time comes to formalize custody and property division, the courts often favor the parent who stayed with the kids in the marital home.

What this all means is that if the parents do not have a plan they honor and abide by before one moves out, then the "out"-spouse/parent may find herself/himself trying to get specific orders from the court while having little access to the children. That lost time cannot be made up/recreated. Not having significant time with the children early on can clearly impact the time you have later, especially if you need to go through custody mediation first.

Many attorneys recognize that where possible (no real physical danger/serious emotional abuse) the parents remain sharing the home and start the process to develop a parenting plan through the court/mediation. This has downsides and you should definitely consult with a knowledgeable attorney before taking steps in either direction.

It is important to note that in situations where your safety or the safety of your kids in danger, leaving with your children can be seen as a move to protect them. But unless you notify the courts of why you left, you could end up being accused of taking your kids merely to prevent the other parent from having access.

Source: FindLaw.com, "Getting Custody FAQ," accessed on April 20, 2016

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