One of the most frequent questions I am asked is whether or not a party should remain in the home or move out when divorce is filed. This blog answers that question for those who are married or unmarried but living with the joint homeowner. The easiest way find to find the answer appropriate to your circumstances is to follow the flow chart below:
First, congratulations on being one of the lucky individuals in this decade still owning your home. Of course you want to do everything to save your home, unless maybe, you do not. If your home is upside down, you need to honestly consider whether or not you should let it go. If your home is $10,000.00 – $25,000.00 upside down, try to save it. Between the payments you will be making toward the principal and the turnaround of the market, which forecasters are saying is just around the corner, my opinion is that the house is worth saving.
Because this home is worth saving, you don’t want to move out because it can then be very difficult to get back in. Sometimes I am asked whether it can be viewed as abandonment if one leaves the house. There is no abandonment unless you leave the home and stop all efforts at paying for the home. The problem arises if you leave the house in the hands of your spouse who then stops paying for the house. In certain instances, a party has already moved out and obtained alternate housing. That party is likely paying rent, thereby making it over impossible to afford both the now deficient house payment and the soon to be delinquent rent payment. Don’t leave the house.
However, if your house is more than $25,000.00 upside down, consider letting it go. But now be prepared to face the following: foreclosure, bankruptcy, and bad credit. Is it worth these risks? My opinion is that it probably is. A house that is so substantially upside down will take years to rectify, certainly more than five years. Your credit will not take that long to fix. In my opinion, paying $300,000.00 for a $200.000.00 house is like throwing $100 bills out the car window for 5-10 years. While your credit may not be at the level it is currently is in five years, it will be comparable. Let the house go.
The question I am most frequently asked is, “Should I move out if my spouse won’t let me take the children?” The answer is a resounding “No!” But like every other answer herein, the answer is qualified. If your spouse is the primary parent and you have no opposition to your spouse remaining in that role, then there is no disadvantage to leaving the home as long as long as you also don’t wish to retain the home. If you do, then you also need to read the answers above in paragraph A.
However, it is never good to leave the home if you have no visitation arrangement in place even if you are okay with your spouse being awarded the lion’s share of the timesharing. I have many cases wherein once the spouse is gone, the first parent becomes super vigilant and refuses to allow any timesharing. While our office can quickly file a motion to obtain child custody timesharing for you, it is best to wait until an order is already in place before moving out. I am finding that the judges are more and more willing to order fairly equal timesharing for both parties even while the parties still reside together.
If you are hoping to be awarded primary custody, it is fairly imperative that you do not leave the home without the minor children. As it has been the rule for over two centuries in this country, possession is 9/10’s of the law. Frankly, this applies to the home or the children. That supposition remains today. I have yet to see a parent who has left both the home and the children later be awarded primary custody, so do not put yourself in that position.
My advice to anyone in this situation is to move slowly. Discuss the possibility of divorce with your spouse. Although in many instances this is not possible, a discussion before the fact is always better than running to court afterwards. Additionally, start practicing a timesharing arrangement while you still reside together. Your period of responsibility may, for instance, be the first three days of the week. On those days, make your child’s breakfast (and dinner), take your child to school, make arrangements for day care, etc. By doing this, you are setting the precedent for the court to act, whether are still in the home with your children or whether circumstances have caused you to leave.
Certain clients I represent have significant ownership of personal property. This may include art collections, antiques, or other valuable investments. Other clients run their businesses from the home. I always counsel these clients to stay with the home. There is certainly no disadvantage to leaving once the valuables have been divided, or well-documented if they not divided. As for the business, this is one of the best reasons for staying with the home, and the judge is more likely to award the home to the party with the business therein. It may even be a good strategy to pre-emptively move the business home if divorce is on the horizon.
In conclusion, be careful in any scenario where you leaving the home if you wish to retain it later. Exercise the same caution if your children, valuables or source of livelihood are in the residence. On the other hand, it may be prudent to move out if the home is financially upside down, if there are no significant valuables in the home, or if you are taking the children with you. Sandia Family Law can assist you in any of these circumstances.