5 FAQs About Moving Out – and How It Affects Your Legal Process
When you’ve reached the point where you know your marriage is over, and you’re ready to begin the divorce process, it can still be very difficult to decide when to move out.
You’re attached to your home. You’ve probably invested a lot of time, love, energy, and money in it. Your stuff – and your memories – are there. If you have children, they’re there too, and that’s one of the most heart-wrenching parts of this whole situation. Finding a new place is daunting, logistically and emotionally, and setting up a new one will be expensive.
On the other hand, the dynamic between you and your spouse may now be so strained that you feel like you can’t stay under the same roof another minute.
We understand.
Here are 5 of the main questions we get from clients about moving out – and things you should know before you take that big step.
Should I leave before I file for divorce?
There’s not a simple yes or no to this one. The “right” time depends on many personal and legal factors. We’ll discuss several major considerations below. But the first thing to know is that speaking with an experienced family law attorney right from the beginning – even before you’re certain you’re ready to file – can help you avoid costly mistakes and common pitfalls.
One spouse also can’t force the other out (e.g., by changing the locks) without a court order.
Does moving out impact custody?
While you do not forfeit your parental rights by moving out of the family home, the simple reality is that if you do move out you can not expect to then receive substantial periods of time with the children. The best court of action is to stay in the house until you and your spouse have a signed custody agreement.
The court must always prioritize the child’s best interests. This involves a holistic evaluation of numerous factors related to the child’s physical health and safety, emotional well-being, existing parental bonds, ties to school, community, activities, and so on. One of the most important aspects of the best interests standard is providing the child with maximum stability. The overriding question is: during the very difficult and tumultuous time of divorce, and as families transition into new structures, what arrangement will provide the stability, security, and consistency that help children thrive?
Part of that consideration is who typically acts as primary caregiver, managing most of the child’s daily routine – breakfast, school pick-up/drop-off, activities, dinner, homework, bedtime. If you are that person, or heavily involved in those day-to-day tasks, moving out can disrupt your ability to do them as usual and may affect how the court views the status quo in your household.
So some couples decide to move into separate bedrooms but continue sharing the home until the divorce is final; or they “nest” (keep the children in the home but take turns rotating in and out) to maintain their regular roles.
On the other hand, judges understand that sometimes it’s unrealistic to go on living together once the decision to split has been made. And it’s important to remember that, in terms of your child’s well-being, research consistently shows that exposure to ongoing conflict is more harmful to children than divorce.
If you decide it’s best to leave, your attorney can help you document your involvement in the child’s daily life and secure a workable arrangement – a written temporary agreement – until the divorce and custody orders are finalized.
How does moving out affect property rights?
You don’t give up your stake in the family home or your share of the marital estate because you move out. Under community property law, all assets and debts acquired during the marriage belong equally to both partners, and the court divides them equally in divorce. If purchased during your marriage, the marital estate includes your home, regardless of who is physically living there. Nonetheless, moving can have impacts. Until your divorce is finalized, you still share responsibilities and expenses for the home – mortgage, taxes, monthly utility bills, and so on, so a spouse who moves out (and needs to set up a new living situation) without first securing temporary support orders could be left in a weaker financial position until the divorce is finalized.
What is the date of separation, and why does it matter?
The date of separation is one of the key factors in asset division – and, for that reason, is often a cause of dispute. Here’s why: again, under California’s community property rule, anything acquired during the marriage is considered jointly owned by both spouses and split equally in divorce. Anything acquired after the date of separation is treated as separate property, not part of the marital estate.
However, “separation” does not always mean actually leaving the home. While moving out is a clear action that can help establish a clean separation date, it’s not the only thing that matters.
Under California Family Code §70, the date of separation refers to:
“A complete and final break in the marital relationship, as evidenced by both of the following:
- One spouse informs the other that they want to end the marriage
- The conduct of the spouse is consistent with their intent to end the marriage.”
In other words, shouting “it’s over” or “I want a divorce” during a fight isn’t enough to establish a date of separation; there has to be follow-through with your actions. The court will review many factors besides when you stopped living under one roof: when you separated your finances, when you stopped living like a couple (e.g., going to family events or on vacation together), when you moved into different bedrooms, and so forth.
What if there is domestic violence, or I believe I’m in danger?
The considerations above matter during a typical separation process. But in abusive situations, legal strategy regarding the details of property division, custody, and support can wait! They’ll be sorted out later, through your lawyers and the court.
Your safety and wellbeing, and that of your children, is the absolute first priority. If you’re experiencing abuse or domestic violence – if you feel unsafe in your home – make a plan and leave. The National Domestic Violence Hotline offers free, confidential, round-the-clock resources. Call 1-800-799-SAFE (7233) or text “start” to 88788. Many local organizations can also help.
Then, speak with an experienced family law attorney as soon as possible. If you’re removing your children from harm, contact a lawyer immediately to help you obtain an order for temporary custody, to prevent kidnapping charges that your ex may try to bring against you. Before you even file for divorce, you can obtain a Domestic Violence Restraining Order (DVRO), form DV-505. Although California Family Code section 6321 allows a judge to “issue an ex parte order excluding a party from the family dwelling,” removal of an abusive spouse requires clear evidence of immediate harm. Leave now, and document incidents of abuse to protect yourself and your legal case going forward.
Our SFLG team has been helping people navigate the divorce process for nearly 40 years. We’re here to answer your questions, help you make confident decisions, and provide powerful, strategic advocacy no matter what family law matters you face.
By Debra Schoenberg
