Should I Move Out of the House During a Divorce?

Welcome to the Ayo & Iken legal roundtable. We tackle the toughest legal issues with down-to-earth commentary you can use from our expert panel of attorneys from Tampa Bay to Orlando.

In this edition, we will be discussing whether you should leave the house while in the midst of a divorce. Emotions run high during a divorce and sometimes living conditions may seem untenable. But our attorneys say there is a time and place where staying in the house can be beneficial. They also provide advice on steps to take should the situation become so bad that you feel you must leave the house.

We talked about these issues with a legal team gathered for the day.

Should I leave the home during a divorce?

Whether you leave the house during a divorce should be considered on a case by case basis. The number one thing to consider is safety. Are you safe in the home? Are your children safe in the home? If it is not safe, you should leave the house as soon as possible. Another consideration is monetary. Can you afford to leave the home? Many people can’t afford to maintain two households on the income that was supporting the one household. A lot of times it takes a couple months in order for us attorneys to get you financial assistance through the courts. The other thing to consider is the children. If you are leaving and the children are staying behind, it could hurt your chances as to how much time-sharing you are awarded by the courts. It is best to try to work out a parenting plan with your spouse before you leave so there is no question if you are going to be able to see the children when you do leave.

This is a very common thing that comes up. I always instruct my clients if you can stay in the home, it is beneficial to do so. What you don’t want to do is take everything you own inside of a house and remove it and go to another location, especially if there is some sort of interest in that property that you want to claim later on. If it is inevitable and you have to leave, such as you do not feel safe or just feel you cannot be in a situation, I would instruct my clients to only take what you need.

It depends on the situation you are facing, especially if children are involved. I have clients that are currently living in the same house with their spouse during a divorce. I have a client living in a separate room from her husband and she suggested to the judge she would even bring in an air mattress just so they don’t have to be in the same room. In such a case, the judge will often order that there will be no discussion of the litigation and no arguing in front of the children. Sometimes it is just very hard to not argue because obviously you are in court during the day so it’s very difficult to put on a smiley face when you get home. So in some cases, if the finances are there, it can be a lot easier to have a separate household.

Will I lose any rights if I leave the house?

No, a lot of people ask me if they are abandoning the house. There is not a legal concept of that.

You’re not going to lose your right to the value of the homes if you leave. Now if you want to get back into the house sometimes leaving to begin with can make it a little harder. There are, however, various reasons people leave that are perfectly acceptable. For example, if there is a possibility of domestic violence you need to leave. There is nothing worth that risk. But again if you leave you don’t give up your equity in the house or the things that are in the house.

There is no abandonment in Florida. So if a party is concerned about leaving the house because they are somehow concerned they will lose money or entitlement to the property that is not the case. As long as it was a marital asset they will be entitled to the equitable division of the house as if they were still living there or if they left.

What factors should I consider should I decide to leave the house?

It really depends on the particular situation. People ask me, ‘If I leave the home am I abandoning it.’ And there is really no such thing as abandonment in the context of a marital home. But I also tell people if there is domestic violence, or threats, or the husband or wife feel particularly uncomfortable while in the home, I always opt for the advice that essentially life is too short. You don’t want to be in an abusive relationship. If it is just unbearable living in the home with that spouse, in most cases it is probably ok to leave. But what I also tell people is if they leave the home, many times things start to be missing. Furniture gets sold, property that the party left in the home starts to disappear, or property starts to getting moved to other locations. And then it becomes a question of what was in the home when the person left. So what I recommend people do if they are going to leave, take a video camera or regular camera and take footage of everything in the home to memorialize what is there. So months down the road, if it is determined the party who stayed in the home took things out, you can demonstrate what was in there before. In essence it is an inventory of what was in the home.

My common rule of thumb is you don’t leave anything you want to keep. So if you want the home, you don’t leave the home. If you want majority time-sharing with your children, you don’t leave your children. So whatever is valuable to you or you want to keep, don’t leave. If you feel like you don’t want the home and you want to start over, you are not going to lose your equity in the home just by leaving. I just like to tell my clients keep close to you whatever you want to keep.

That has to be one of the more common questions asked by our clients. This was really great for our viewers and answered many future questions. As usual, I would like to wrap up by expressing a big thank you for giving all of your opinions. Meanwhile we hope to see our readers come back to the Ayo and Iken roundtable. See you then !