Should I move out of the house after separation?

It’s no secret that people who have decided to get divorced probably don’t like living together. Chances are they probably didn’t enjoy residing with one another before they called it quits either. Usually, the next question after a couple decides to divorce is who is going to move out of the house. However, before you pack your (or your spouse’s) bags, here are some questions that you need to consider:

• Do I want to keep the house after the divorce?
• Have we decided on a custody schedule for the children?
• Can I afford to live in this house without my spouse’s income?
• If I move out can I get spousal support?
• Can I afford to move out?
• If I move out will I have to pay child and spousal support?

Do I want to keep the house after the divorce?

Lots of my clients think that if they leave the house after separation they forfeit their rights to it. This is not true! I repeat, this is not true! The house, as long as it was purchased during the marriage, is a marital asset and part of the property division.

Therefore, it can be assigned to either party in the final distribution. Also, leaving the house does not mean that it somehow becomes the property of the other without accounting for its the value. Rather, it will certainly be included in the total value of the estate to be divided.

That being said, generally, the person who stays in the house after separation is the one that keeps it. Not because they have more claim to it but because they likely want it more than their ex. While people have reasons for leaving a house they would like to keep (abuse, too difficult to live with the other person), they generally leave because they don’t want the house or know they can not afford to keep it after the case is settled. While I have had a few cases where the person who has moved out later keeps the property in the final award, it is very rare. Rather, the person who stays is the one who keeps the house. If no one wants it or can’t afford it, it’s sold.

Remember, if you are not yet married, you can always included language in your prenuptial agreement stating who would get first right to keep the house after separation. Just another reason to get a prenup. Wink, wink.

Related: Why you should have a prenuptial agreement.

Have we decided on a custody schedule for the children?

While it is important to think about where you want to live after separation, it is equally (or even more) critical to think about where your children will be residing and with who. Lots of my clients are reluctant to leave the house without having a custody agreement in place. This is for good reason.

It can take months to get a custody hearing before a judge in some places. Before that hearing, you may not have any court order providing you and your spouse with a custody schedule. Without an order, both of you have equal right to have physical custody of your children at anytime until a judge or an agreement says otherwise. Therefore, if you and your ex can not agree on custody, every day will be anarchy until you can get to that hearing.

The Courts will generally not enter a custody order while you and your spouse are still living together unless one of the parties is moving out soon. Use this time to work out a custody agreement, or at least an interim one, so one of you can move out. In fact, if your spouse wants you to leave, staying until you have such an agreement can give you leverage to come to a quick resolution.

In all divorces, one of the parents is going to be moving out of the residence. Sometimes, both parties have to move. This generally happens if the parties can’t afford to stay in the house without two incomes being available to pay the bills. While transition in a divorce in inevitable, it doesn’t mean that it will be easy for yourself or your children. Having a custody order in place will provide the children with some stability during this tumultuous time. Moving with kids? Here are some additional tips to help ease the transition.

Related: Child custody terms you need to know.

Can I afford to live in this house without my spouse’s income after separation?

Cost is definitely something that you need to consider when deciding whether to stay or go. Generally, when parties purchase a home, they also obtain a mortgage. When both parties work, the monthly mortgage payment is often based on the couple’s total income.

However, when the parties separate and one person moves out, the remaining spouse is left to pay the mortgage and other carrying costs (utilities, taxes, insurance, maintenance, etc.) on their own. Although you may be entitled to child and spousal support, can you afford to pay that mortgage yourself?

Therefore, if you want to keep the house, you need to look at your income and your monthly budget to determine if this is the best financial decision for you. If you are eligible for support, ask you attorney to calculate a potential award for you so you can factor those monies into your decision. However, I hesitate to counsel you to rely on the spousal support money to determine whether you can make the mortgage payments and satisfy your other expenses. What if you don’t get alimony in your final award?

Also, if your house is one of the largest assets of your case, you may need to refinance your mortgage and obtain additional monies in order to buy out your spouse’s interest in the home. If you obtain those additional funds by getting a larger mortgage, will you be able to satisfy the higher mortgage payment that will result?

Lots of people are very emotionally tied to their home and want to keep it at all costs. I get that. However, I really want to urge you not to think with your heart on this. Rather, you need to think with your wallet and make a sound financial decision for your future. You do not want to have to file for bankruptcy or sell the house at a loss only a few years later because you couldn’t keep up with the expenses.

If I move out of the house after separation can I get spousal support?

It depends. In some states, moving out of the marital residence is a defense against your entitlement to spousal support. The basic theory to support this defense is that if you had stayed you would have gotten support via your spouse paying the bills or a portion of them. So, by moving out you’ve actually created your own hardship.

While I know that this does not take into consideration valid reasons for moving out (i.e. acrimony, alcohol and drug issues, etc. ) this is a defense under some laws. If you are worried about whether moving out of the residence would prevent you from obtaining spousal support, it is best to contact an attorney in your area to discuss the specific circumstances of your case. It is also best to do this before you leave so you can avoid any missteps that could cost you money.

Related: Hacks for your initial divorce consult.

Can I afford to move out of the house and live somewhere else after separation?

Similar to deciding whether to stay, deciding whether to leave must also mandates a review of your finances. Generally, two parties living together are going to do better financially than two people living apart. This is because certain bills, such as insurance, cable, internet, rent/mortgage, etc. are not based on the number of people that live in your home. For example, just because one less person is watching Netflix is not going to decrease your monthly bill for that service.

Unfortunately, because of this, it is unlikely that you will be able to afford housing commensurate with your marital home because you are financing it on a single income. Therefore, it is imperative that you assess what your monthly fixed expenses will be if you move out and whether you have the income to meet them before securing a new residence.

As discussed above, you may be entitled to support which will aid you in paying these expenses. Therefore, it is best to have a lawyer calculate a potential support award for you before you move out so that you can factor those monies into your housing budget.

I suggest moving into a temporary location when you first move out rather than buying a new property. This way, if you find that you have more income which would allow you to purchase a property or rent a nicer apartment, you aren’t stuck. Similarly, if you miscalculated your divorce settlement, you have the ability to downsize easily.

If I move out will I have to pay child and spousal support?

Generally, a court will not enforce a support obligation while the couple is still living together. However if you move out, you may be ordered to pay child and spousal support. Child support is paid by the party who has partial custody to the person who has primary custody, regardless of who makes more. If the parties have shared custody, then the person who makes more income pays the other, subject to an adjustment for shared time.

So, if you move out, make more money than your spouse, and are not the primary custodian, then you will owe your ex child support. You may also owe spousal support if you make more than your spouse and there are no entitlement defenses that you can use to deny their claim. Again, ask your attorney to calculate a potential support obligation for you before you leave the property as it may dictate whether you go and where you go to.

Related: Can I change the locks on the marital home?

So are you ready to decide if you should move out of the house after separation?

As you can see, there are a lot of things to consider before simply packing your bags and renting a U-haul. While you may not be able to get away from your spouse fast enough, it is important that you sit and look at your finances before determining whether it is in your best interest to move out of the residence while the divorce is pending. Remember, it is always best to discuss these types of strategic questions with your attorney who can craft a unique plan of action for your case.

Have a question about when to move out of the marital residence during a divorce? Did you move out and regret it? Did you not move out and wish you had? Comment below.

Looking for what to do next to help you to get to your best post divorce life?

Want to make sure that you don’t miss any of my tips and tricks for navigating the divorce process? Make sure that you sign up for my weekly newsletter where I recap the week’s articles and provide some additional promos and content just for my subscribers. You’ll get a FREE post-divorce checklist just for signing up!

Or, have you just separated from your spouse and don’t know what to do next? It can be difficult to determine where to start first. Don’t worry, I got you! Get my FREE checklist for what to do when you are newly separated. You don’t want to miss it!

Have a question about how to use credit during and after your divorce? Leave a comment below or send me an email!