Should I Stay or Should I Go? Leaving the Marital Home during a Divorce

Woodbridge divorce lawyers offer advice on leaving the marital home.Living in the same residence as your spouse during a divorce can intensify already strong emotions. The instinctual reaction for many people going through a divorce is to physically separate from their spouse and remove themselves from the conflict and inevitable arguments. While it may seem easier move out of the marital home while a divorce is pending, this decision can seriously impact the way your divorce unfolds. Before you pack up and go, consider the consequences this action can have on your children, finances, and ultimately the divorce settlement.

Effect on Child Custody

One of the top reasons not to prematurely leave the marital home is that it can compromise your custody rights. By voluntarily leaving the marital home without your children, it gives your spouse de facto custody of the children. Living in a separate location from your children will immediately reduce the amount of time you spend with them. With divorces taking anywhere from a couple months to over a year, leaving the marital home will severely limit daily interactions and quality time with your children. When family courts make a custody determination, they consider the best interests of the child and will often weigh the recent lack of parenting time and lack of involvement heavily. The family courts also take into account the geographical proximity of the parent’s residences.

Effect on Finances

Whether or not you and your spouse have children, moving out of the marital home can also lead to financial complications. If the primary earner of a household moves out of the marital home, courts can order him/her to maintain the status quo by paying “pendente lite support” to the other spouse. This requires the person to pay temporary spousal and/or child support during the divorce proceeding. Additionally, you may be required to continue paying for the home’s mortgage and other carrying costs. If you plan to rent an apartment or purchase another residence, this could trap you into paying two sets of bills on one income. Legal fees during a divorce, coupled with pendente lite support, can be a devastating financial blow to any individual. Obviously, no one would want to voluntarily undertake an additional set of bills, so until a judge orders you to leave the home, you are often better off financially to remain in the marital home.

What You Can Do If You Have to Leave

Although there are many reasons to stay in the marital home, circumstances may arise where it is worth the associated risks to leave. Some examples include if the parties have an especially hostile relationship, when one spouse is fearful of domestic abuse, or if one spouse is concerned the other will make false accusations about him/her. In cases like these, quickly consulting with an attorney and ensuring your own safety is wise.

Moreover, if you are determined to leave the home (or forced to by the court), there are several important preparations to consider:

  1. Obtain copies of all vital and relevant documents. It can be extremely difficult to get back in to the marital home after you leave, therefore, it is important to gain copies of tax returns, paycheck stubs, loan agreements, mortgage documents, car titles, etc.
  2. Be sure to document valuable pieces of property, furniture, or jewelry by photo or video.
  3. Have a court ordered custody schedule to guarantee continued contact with your children during divorce proceedings.
  4. Carefully research where you will live. If you have children and hope to obtain shared/equal parenting time with them, you will need to live near the marital home. The expectations of the court will be that the new schedule will not interfere with the children’s schedules and that the second residence has similar living conditions to the marital home.

Concluding Thoughts

When faced with divorce, your initial reaction may be to get out of the home immediately. However, it is important to remember that if your name is on the home’s mortgage, you are not obligated to vacate the property until a court order is entered. If you do choose to leave, seek out an experienced matrimonial attorney to discuss the consequences it could have on the custody of your children, spousal support, and your finances before stepping out of that door.

For more information regarding whether or not to leave the marital home contact the law office of Lyons & Associates. At the law office of Lyons & Associates, we represent men and women throughout New Jersey who have unresolved family law matters.  We place a premium on personalized service and attention. For a private consultation, view our website at, or call our office at 908-575-9777.