For many couples who have decided on divorce, continuing to live together can bring out all the worst in both of you and belabor all the reasons you sought a divorce in the first place.
Consequently, one spouse might choose to move out to make the breakup emotionally easier for all concerned.
But moving out of the family home prior to the divorce being finalized can potentially have very serious implications for the one who moves out. Divorce lawyer Juan Luciano explains why.
Why you shouldn’t move out if you are in the middle of a divorce
From a legal standpoint, moving out of the family home is one of the biggest mistakes you can make when you are in the middle of a divorce. This is because, in the eyes of the law, the spouse that moves out may be considered “abandoning” the family in a contested divorce. Even if the divorce begins as a friendly one, if it becomes contentious, the other spouse may use this against you in multiple different ways.
Moving out of the marital home during a divorce can set up many precedents in a divorce, including distribution of property, child custody, and spousal support. Before you move out, speak with an experienced divorce attorney to understand the potential ways that it can harm you.
1. Child custody
One of the primary ways that moving out of the marital home can work against you is custody of the children and parenting time.
Moving out prior to the divorce finalization means you are now spending less time with your children than if you stayed in the home. If the divorce goes before a judge, the judge may assume that your children aren’t a priority. Most judges are reluctant to change a child’s schedule, living situation, and parenting time. Establishing less contact with your children before the divorce is final can impact custody or even visitation rights.
You will also want to consider your living arrangements if you move out. A judge deciding custody and visitation matters will want to see that you are keeping your children in mind and providing them a safe and clean place to come to. If you want to remain in your children’s lives, choosing a comfortable and home-like place to live in close proximity to their school, friends, and activities is an important consideration.
2. The financial implications of moving out
Moving out of the marital home can also set some negative financial precedents that may impact you when you go before the court. The costs of maintaining two households can be staggering in South Africa. In most cases, you are still responsible for covering your share of the expenses of the marital home even if you are temporarily living elsewhere until the divorce can be finalized. Moving out of the home can be financially devastating to the spouse who chooses to leave.
The court may use this ability to maintain two households when it comes to awarding spousal support. If you are the primary breadwinner, the court may see your ability to maintain the upkeep of two households as financially viable and order you to continue paying that as temporary spousal support.
3. Equitable distribution of marital assets
We have equitable distribution of marital assets when a couple is divorcing. But equitable does not mean equal. What is considered “equitable” in the eyes of the court is subject to many variables. In a contested divorce, a judge will determine what is equitable depending on what each spouse has contributed to the marriage and what each will need to move forward.
Some of the factors used in making this decision include the future financial circumstances of each spouse, who has primary custody of the children, and who will need the family home the most. By leaving the home, you may have already set the expectation that the other spouse will get the marital home in the distribution of assets.
While wanting to remove yourself from an unhappy setting as soon as possible is totally understandable, the decisions you make today can have a detrimental effect on your life for years to come. Before you make the decision to move from your home during a divorce, consult with an experienced divorce attorney to understand how it may or may not impact your particular situation.
