SHOULD I MOVE OUT; THREE QUESTIONS TO CONSIDER

The most common question I get in divorce situations is if it’s okay to move out of the marital home. I talk about three problems areas:
1. You may not get back in. If you move out and especially if you establish your own separate residence, a court may easily find that your spouse has exclusive right to occupy the marital home. Even before a court order, when push comes to shove a police officer may tell you that since you’ve established a separate residence you can’t come back into the home without your spouses permission. In short, I’ve seen spouses change locks and get away with it.
Your access to any of your belongings still in the marital home will be limited, of course, and you could be at the mercy of your spouse to not hide, destroy, lose, or sell them, etc.

2. Child Custody. If you leave a minor child behind, your spouse could gain an advantage in a custody battle. Court’s often at find that children are better off staying in the marital home for their emotional well-being. Plus, your spouse may be in a position to argue he/she is the child’s “primary caretaker,” a common question in custody disputes (relevant in the important factor (b) in the best interests factors in the Child Custody Act .

If you move out with the children, the court may still decide they’re better off in the marital home. (Another of the factors listed in the Child Custody Act is “(e) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.”)

3. Temporary or Permanent Alimony. If your spouse can’t afford the expenses of the marital home, like, for instance, a big mortgage payment, you may be ordered to pay part of the expenses, temporarily or longer. This could take the form of an alimony payment.

All or none of these problems may exist for you, but if you have any doubts about whether to move out, you should seek legal advice about your situation