Moving Out During a Divorce: Is It a Mistake?

Schwartz, Fox & Saltzman, LLC. – Philadelphia Divorce Lawyers

A divorce is a painful process that raises many difficult questions. One of the most common questions is whether to leave the marital home. This decision should be carefully considered as it could have important legal and financial consequences.

Can You Move While Going Through a Divorce?

It depends. If you or your spouse have children and one of you wants to leave the area in which the family home is located and you are the custodial parent, 23 pa.c.s.a. § 5337 requires you to provide written notice to your spouse before moving out and possibly relocating. Whether you can move, or Relocate, is a rather complex and fact specific matter. Before you leave, it would be smart to speak with an experienced family lawyer.

Should You Move Out During Your Divorce?

While a divorce is a painful process, the decision to move out should not be governed by your emotions. Stated simply, it  can be advisable to remain in the marital home during the divorce. It is important to speak with a good family lawyer for advice before you leave. 

However, if your safety is threatened you should leave immediately.  

Why Moving Out May Be a Mistake

If you and your spouse have an acrimonious relationship, it may be tempting to simply leave the marital home. While this may provide a level of emotional relief, it can create other issues which could affect your divorce or custody. Specifically, moving out may cause you further financial and legal difficulties.  

Child Custody Issues

If you move out, it could weaken your position with regard to child custody, depending if you wish to keep the family home after your divorce is resolved. Under Pennsylvania’s Child Custody Statute, the Pennsylvania Courts use the “best interest of the child” standard when evaluating the custody rights of each parent. Again, consulting a lawyer before you leave is important.

Effects on Financial & Property Division

If you are the primary income producer in your family, you may  have to pay support to your spouse, and children if applicable, if you leave the home. Additionally, by leaving you may make it easier for your spouse to obtain an order that grants them exclusive possession of the home during the divorce. Finally, if you move out, it may affect spousal support if your spouse seeks it during the divorce.

Spousal Support Issues

Spousal support is a benefit the lower-earning spouse may seek during a divorce. If you are the higher-earning spouse, your spouse  can file a request for support if you leave the marital home.

Is Moving Out Required Before or While Filing for Divorce?

No, moving out is not required before or during a divorce. While Pennsylvania requires divorcing spouses to live separate and apart, this does not necessarily mean a physical separation.   You can live separate and apart while remaining in the marital home, under certain specific circumstances.

Can Your Spouse Force You to Move Out Before or During a Divorce?

Yes, your spouse can force you to move out during the divorce if they obtain a protective order or if they are awarded exclusive possession of the home during the divorce. To obtain exclusive possession, there are very specific facts your spouse must prove.  

Problems With Moving Out of State

As previously discussed, if you and your spouse have children in common, your spouse can object to you moving out of State if you are the custodial parent. Specifically, if your spouse can demonstrate that your moving out of State affects their custody time or schedule with the child, they may be able to object to your moving out of State. Additionally, moving out of State without Court permission could make it more difficult to obtain favorable rulings in future child custody battles.

Considerations About Moving Out During a Divorce

One of the biggest dilemmas people who wish to separate ask is; “Should I leave the house? Should I stay in the house? What should I do?

The answer to those questions is very closely tied to the specific facts of each case. There is no easy answer. Some of the questions are:

  1. Are there children involved in your relationship? If so, what type of custodial arrangement do you and the other parent want?
  2. Who owns the house that you and the other parent reside in? If you own the house and you are considering moving out, who is going to pay the mortgage, if there is one? This is an important question, since if the house is owned by one party from before the marriage, a mortgage loan will also be in that person’s name.
  3. What is going to happen with ownership of the house at the time of divorce? Will it be sold? Does one party wish to retain the house? Can that party afford to? Do both parties wish to retain the house? Can one party afford to refinance the mortgage to pay the other party their share of the marital value of the house?
  4. Will the child(ren) live in the house after the divorce with one parent? Is that parent you?
  5. Are you physically separating? Remember, you can be separated, according to law, but still live in the same household (that in and of itself is a complex consideration and needs to be carefully explored by you and your counsel). If you are considering leaving and the home is owned by you from before a marriage, are you concerned that the other party will properly care for the house?
  6. If you are considering staying, what is the quality of life you have in the house? Is the other party respectful of your privacy and allowing you to live in quiet enjoyment in the home?

As family lawyers, we are often asked: “How do I get the other person out of the house? His/her name is not on the deed and they won’t leave. What should I do?

Even if the other party’s name is not on the deed, it may be difficult to compel the other person to leave. As long as they allow you peaceful enjoyment of the home and are respectful of the house, Judge’s won’t remove a person from the home in most cases until the divorce is finalized. There are exceptions to this rule and if the issue applies to you, a consultation with a good family lawyer might be in order.

Mediating this issue can also be helpful. While the Court may not issue an Order that a party leave, negotiating this issue can be a solution that gets both parties where they wish to be.

Talk with a Philadelphia Divorce Attorney

Divorcing your spouse is not an easy process. Obtaining a successful outcome requires skilled legal representation.  Contact the experienced Philadelphia divorce lawyers at Schwartz, Fox & Saltzman to learn about the representation we can provide!

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