Effects on Custody and Parenting Time
Before you move out of the marital home, there are several factors that one should consider. First, and likely the most important consideration, is whether you have children. If so, this can be a complicated endeavor if you want to move out with the children. If your spouse will not consent to your move out of the marital home with the children, there are a few options available.
- If the divorce litigation has commenced or if both you and your spouse have already retained attorneys, you could direct your attorney to reach out to the opposing attorney to try and work something out without having to file motions and expending funds unnecessarily on attorneys fees.
- You could direct your attorney to file an “Order to Show Cause” which is basically an “emergent motion” asking the court to allow you to move out of the marital residence with the children. An emergent motion comes before the Judge on the same day or the day following when it was filed, whereas a regular motion is filed and will not be addressed by the Court for at least 24 days. If you file an emergent motion the court would likely only allow you to move out with the children if you establish that the children will suffer irreparable and imminent harm if you are not permitted to move out with the children. To prove that the children would suffer irreparable and imminent harm you would likely have to establish that your spouse is a danger to the children and/or you. For example, you could allege that your spouse is abusive, suffers from drug and/or alcohol addiction, or suffers from mental illness which is detrimental to the children. Where there is no abuse present, no substance abuse issues present, or other issues which have a negative impact on the children, the order to show cause would likely be denied.
- You could direct your attorney to file a motion with the court which would take at least 24 days for the court to actually decide the motion. The court will likely not want to uproot the children from where they currently reside since this is the “status quo” and during the pendency of litigation, the court is usually reluctant to make any changes unless it is necessary to avoid harm to the children or you.
- You could move out of the marital residence with the children without first telling your spouse. This is a risky maneuver as your spouse could file an emergent motion to force you to move back in the marital home with the children. If there is no significant reason why it would be in the children’s best interests to move out of the marital residence with you, it is likely that the court would grant your spouse’s request to force you to move back in to the marital residence.
If you want to move out of the marital home without the children, this may have a significant impact on your right to custody and parenting time. For example, if you move out of the marital home and the children remain with your former spouse, he or she is in a better position to become the parent of primary residence or in other words the parent who makes the day to day decisions regarding the children. For example, litigants who move out of the marital residence during the divorce proceeding often do not have the financial resources to support two households and at the same time pay his or her attorney. Due to this fact, some litigants who move out of the marital home may not be in a position to secure the living arrangements that the children are accustomed to and are forced to rent apartments which are substantially smaller and more cramped than the marital home. If a litigant can only afford to move into a one bedroom apartment and he or she has 2 children, the living arrangements at the marital home would be more accommodating to the children and more in line with the lifestyle they enjoyed during the parties’ marriage. Another issue arises where the parent who moves out of the marital residence obtains an apartment or rents a house outside of the town where the marital residence is located. The parent who moved to a town outside of the district where the children attended public school will face an uphill battle in his or her quest to become the parent of primary residence. A court would likely not be inclined to designate the litigant who moved to another school district as the parent of primary residence if the children not only have to change addresses but have to change schools.
In short, it is usually favorable for a litigant to remain in the former marital home during the divorce litigation for as long as possible, unless as stated above, abuse, drug and alcohol addiction, or the mental illness of one spouse, or any other issue, is detrimental to the children’s well-being.
If you are someone you know has a question about whether he/she should move out of the house, then fill out our online intake form, or call the skilled New Jersey divorce lawyers at Lyons & Associates at 908-575-9777.
Written by: Mark T. Gabriel, Esq.