One concern we see often in divorces is how to handle the marital home while the divorce is pending. For a related discussion of how to ultimately determine what to do with the marital home at the conclusion of the divorce, and the logistics of those decisions, click here and here.
No Such Thing As “Abandoning” the Home
A very common misconception is that if one spouse moves out of the marital home, they will have “abandoned” any claim to it, whether it be the right to return to the home or the value of the equity in the home. Neither concern is true but each warrants a discussion.
Moving out of the marital home during the divorce does not eliminate your right to return to the home or your claim to any possessions within the home that are marital property. From a practical standpoint, however, returning to the home after moving out can be difficult. If the spouse who did not leave the home decides to change the locks and security system codes (which is not unheard of), then the spouse who is attempting to return to the home, whether to move back in or to simply visit the home to check on or gather some belongings, will be thwarted. This means that the attorneys of both spouses will have to work together to obtain the cooperation of both spouses to facilitate the returning spouse’s plans, a process that can be much more complicated and time consuming than you may imagine, due in part to the heightened emotional state of both spouses. If the spouses cannot be convinced to cooperate in this manner, then a motion will have to be filed with the court to allow the spouse to return to the marital home. Between the time it takes to draft and file the motion, coordinate hearing time, ensure the court is available, have the hearing, and obtain an order, months can go by. As can be gleamed from the above, this can be a time-consuming and therefore costly process. The conclusion here is: Be cautious about moving out of the marital home if you think your spouse will lock you out as a result; you can get back in but it can be a complicated and costly process to do so.
When it comes to your legal claim to the value of the equity in the marital home, that is entirely unaffected by your decision to move out of the house during the divorce. There is no legal concept of “abandonment” of the marital home in Florida law. You will not lose your right to the value of the equity in the marital home, regardless of how the home is ultimately handled. This is a pervasive myth in family law that has no basis in the law, perhaps based on antiquated statutes and common law concepts from ages ago. It must be noted, however, that if you do move out of the marital home during the divorce, you and your spouse are still responsible for maintaining the cost of the home the way you had been doing so previously (maintaining the financial status quo). In other words, just because you move out of the marital home during the divorce does not mean you are no longer responsible for helping to pay the mortgage, utilities, home owners’ association fees, etc. This is why it is often financially not feasible for one spouse to move out during the divorce. It is difficult to maintain two households on the income that was being used to support one household. The conclusion here is: You will not lose your claim to your portion of the equity in the marital home by moving out; however, it can be financially impossible to support two households while going through a divorce, so tread carefully.
Moving Out Could Impact Who Gets To Keep the House Ultimately
Something else to consider is that moving out of the marital home may impact who gets to keep the house ultimately. If your goal is to move back into the house and keep it for yourself as part of equitable distribution, the fact that you already moved out and have not been living in the house for a substantial period of time may have a practical impact on whether you get to keep the house in the divorce. Of course if both you and your spouse want to sell the house eventually, this should not matter. Or if your spouse wants to keep the house and pay you your share of the equity in the home and you agree to that, this should not matter either.
Safety First, Always
If you feel that you need to leave the marital home due to domestic violence or fear for your personal safety, that should guide your decision to leave the home before any legal consideration mentioned above. Your safety is the paramount concern. Further, if thing have reached a point where you and your spouse cannot peacefully co-exist in the marital home, then moving out might be for the best. A divorce can go on for well over a year and if you and your spouse are making each other extremely uncomfortable every day, it might be worth exploring your options to move elsewhere.
Making the decision to pursue a divorce is already one of the most difficult decisions a person can make. Having to then decide how to navigate whether to move out during the divorce only compounds the difficulty and emotional strain. We welcome the opportunity to help you make these decisions in a constructive and measured manner, so please click here to schedule a consultation.
