When people file for divorce, it’s not uncommon for them to wonder
if moving out of the marital home would have any impact on their
divorce proceedings. People commonly, and mistakenly believe that moving out of
the marital home would affect their rights to their valuable asset, but
that is not true.
California is a community property state; as long as the home was acquired
during the course of the marriage, each spouse has a 50 percent interest
in the home, regardless of who moves out during the divorce process.
If you decide to move out of the home, the move will have no bearing on
your interest in the property. Each spouse has the equal right to buy
out the other spouse’s share, and if they both decide to make that
property can be sold and the proceeds of the sale divided among them.
When Child Custody is an Issue
If you have children and child custody is an issue, that’s a whole
other story. Often, divorce attorneys will advise clients NOT to move
out of the marital home while there is an ongoing child custody dispute.
Why? Because, leaving would establish a new status quo, and create a “custodial”
parent by default – the parent who stays in the family home.
This is something that can be overcome, but if custody is important to
you, we recommend staying in the marital home until child custody is sorted out.
Keep in mind that the parent who leaves may be ordered to pay temporary
child and spousal support, while at the same time having to pay for a
second household, which can be costly.
If living under one roof is too difficult to bear, the best way to effectuate
the move is to create an interim
child custody schedule (before moving out) with the court that ensures leaving the marital
home would not bar you from maintaining frequent access to your children.
Do so would establish security for you and your children, and a precedent
for ongoing custody.
If you want to know how moving out of the family home would affect your
rights to child custody, we urge you to contact our Los Angeles divorce
firm before you make a decision that could have adverse consequences.
Contact Claery & Green, LLP to schedule a free case evaluation.