Although you might want or need to physically separate from your spouse while your divorce is pending, strong financial and emotional connections to your family home can make the decision to move out a difficult one.
Separate and Apart Laws
In some states, spouses who are divorcing must live separate and apart for a period of time before they can file for a divorce or before a judge can finalize a divorce. It might be possible for the spouses satisfy this requirement when they live under the same roof (for example, if they don’t have marital relations), but usually, “separate and apart” means that you can’t share a home. If your state requires that spouses live separate and apart, you’ll need to decide whether it’s you or your spouse who moves out.
Your Comfort and Well-Being
Continuing to live together in the same home after the deciding to divorce can be challenging. Being around your spouse day and night in this situation might result in arguments and resentment. Moving out might be a good way to make the process easier on yourself and preserve your mental health. Consider moving in with friends or family or finding another place to rent if you can afford one.
The Effect on Your Children
Having divorcing parents living under the same roof can be especially hard on kids. If you have children, it might be in everyone’s best interest to move out so that the family house can be a neutral, conflict-free zone. Also, the decisions you make regarding residence in the family home now could have an effect on a judge’s final child custody decisions.
Child Custody
Judges are aware that repeated change can be difficult for children, and will maintain the status quo whenever possible. When children remain in the family home during a divorce, the parent who lives with them can argue that changing this arrangement after the divorce will be disruptive. On the flip side, the other parent will object to being punished for leaving the house—even though the move was made with the children’s best interests in mind. To avoid this catch, parents should try to create a written parenting agreement before one of them moves out. The agreement should establish a schedule for both parents to spend time with the children and should state clearly that neither parent is giving up their custody rights. If the parents can’t reach an agreement, the parent who moves out but wishes to have significant parenting time must ask the court to establish a shared parenting schedule. The earlier this can be accomplished, the better, so that shared parenting becomes the new status quo.
The Financial Impact
The spouse who stays in the family home during the divorce won’t necessarily receive the house when the court divides the couple’s property. State laws require judges to distribute marital property either equally or “equitably” (fairly). This usually means that one spouse will be able to keep the house only if the other spouse receives either money or other property of comparable value. Some states also consider “fault” (such as adultery or abandonment) when dividing property. Even in these states, judges also consider other factors such as the length of the marriage, each spouse’s contributions to the household (including contributions as a homemaker), and each spouse’s health, age, employability, and other resources. Judges usually don’t base property division on who lived in the family home during the divorce.
If you decide to move out, it’s a good idea to create an inventory of all the personal property in the house (such as furniture and appliances), and photograph important items. Unless you have an agreement stating otherwise, take only personal belongings, such as clothing and jewelry, with you when you leave.
If You Move Out, Make Your Intentions Clear
Even though moving out of the family home during the divorce doesn’t automatically mean you lose custody or rights to keep the house after divorce, you shouldn’t take any chances. Put your intentions in writing.
As mentioned above, if you and your spouse can agree on the terms of your moving out—for example, by drafting a parenting plan and statement that neither of you gives up any rights to marital property—write out the details of the plan, sign it, and make sure your spouse signs it, too. If you’re working with an attorney, you might want to have your attorney review it before signing. If you’re not able to reach an agreement about moving out with your spouse, you can ask the court handling your divorce for “temporary orders.” The purpose of temporary orders is usually to allow the family to maintain as much of the status quo as possible. But if the judge agrees that it’s in everyone’s best interest for you to move out of the family home during the divorce, it’s likely that the judge will enter temporary orders outlining the terms of your move out, such as a parenting schedule and a plan for preserving the marital property until the divorce is finalized.
Other Options
For couples who are able to communicate civilly during their divorce, there are some creative short-term options that can ease financial and parenting problems, such as:
• “Bird-nesting.” This is an arrangement where the children remain in the family home, and each parent lives there for alternating periods, like a week at a time. If the spouses can stay with friends or family members nearby, or the budget will permit renting a small apartment that they can also share, parents might find that it works well for the children to stay put while the parents rotate in and out.
• House splitting. If the family home is large enough, the spouses can divide the house into separate occupancy areas. The spouses can then either share the common areas as needed or plan a schedule for use of common areas.
One of the biggest challenges of divorce is making the income that once supported one household stretch to take care of two. Especially in tough economic times, some couples continue living together in the family home because they simply can’t afford to support a second household. Ultimately, a higher-earning spouse who moves out of the family home after divorce will likely have to continue paying a portion (or all) of the household expenses, including the mortgage and insurance payments. Depending on the couple’s financial situation, the court might distribute other marital assets to the spouse who moves to compensate for the fact that the other spouse was able to remain in the family home.
Dividing Your Property During Divorce
As if the decision to divorce wasn’t tricky enough, now you must determine how to divide your assets and debts. This article should help you understand the basics of property division in a divorce, along with some tips on how to make the process easier for both spouses.
Property Division
In every divorce, couples must divide marital property and debt before the judge will grant the request for a divorce. Couples have two choices: work together to determine what property each spouse will take away from the relationship, or ask the court to decide for you. If you live in a community property state, the court presumes that any assets (or debts) accrued during the marriage belong equally (50/50) to both spouses. If you have property that belongs to you, whether you brought it with you to the marriage, or you acquired it alone during your relationship, you’ll need to ask the court to award the separate property to you.
In equitable distribution states, the court will divide marital property fairly between the spouses, which doesn’t always mean a 50/50 split. The court will categorize the property as marital or separate before the judge awards any portion to either spouse. If you have separate property, you’ll need to prove your ownership with receipts, witnesses, or any other evidence.
Work Together to Reach a Property Agreement
There’s no doubt that a judge won’t understand your family’s circumstances as well as you do. If you’d like to keep control of how you split your assets and debts in your divorce, it’s best to work with your spouse, rather than letting a court decide.
Create a List of Assets
One of the easiest ways to start the property division process is for each spouse to create a list of assets and identify which spouse should receive it in the divorce. When you’re both finished with your list, you can come together to compare. If you have a dispute, work together to resolve it and determine who should get the property. It’s important to be transparent through the property division process. Both spouses must identify all assets that they acquired throughout the marriage, which includes bank accounts, insurance policies, vehicles, retirement accounts, pensions, real estate, recreational vehicles and equipment, and anything else that holds value.
If you agree to a property settlement and later find out that your spouse didn’t disclose an asset, you can ask the judge to reopen your case to reevaluate the property division. In addition to potentially losing assets later, the guilty spouse may also face fines or penalties from the court if the judge believes your ex intentionally failed to disclose or hid information the asset. Honesty is always the best policy when it comes to disclosure.
Value Your Property
Another important step is to determine what the property is worth. Generally speaking, courts will accept the fair market value (FMV) of each item, which is what you can get for the item if you sell it on the open market today, not what you paid for it.
Try to agree on a value for each asset worth more than a specific amount—say, $100 or $500. There are some useful websites that can help you value certain property, such as Zillow.com or Redfin.com for real property. For more difficult or complex valuations, like of a business or antique collectibles, you may need to hire an appraiser. If you can’t agree on a value for a specific item, you may each have to hire independent appraisers, and ask a judge to pick from one of the two valuations.
Determine If the Property Is Marital or Separate
Whether you’re in a community property or equitable distribution state, if you own separate property, it will remain in your possession. That said, you must first categorize and agree that the assets were separate before you can move forward. Each spouse should identify the owner of each asset. If there is a disagreement about whether an asset is marital or separate, the person claiming the item will have to prove to a judge that it’s owned separately. You can do this by showing the date of purchase, where the funds came from to purchase the item, and how the item was kept separate during the marriage.
Don’t Forget About Your Debt
Marital debt is not excluded from property division in a divorce. If you acquired joint debt during your marriage, like a mortgage, car payment, or tax debt, you will probably have to split that between the two of you during your divorce. If you owned a credit card in only your name, and you never used it for marital purposes, like groceries, you may be solely responsible for the amount owing.
Remember, while the court can assign the debt to either (or both) spouse, it can’t change the contract you have with your creditors. For example, if the judge requires your spouse to pay off a joint credit card, but your ex fails to pay the monthly payment to the creditor, the credit card company can (and will) still come after you for payment. Unless you want your credit score to be in jeopardy, you’ll need to pay it, and ask the court for reimbursement from your spouse later.
Draft a Settlement Agreement
If you and your spouse can agree on all of the terms of your property and debt division, you can create a property settlement agreement to present to the judge. Your agreement should list each asset and debt, the owner, and the value. If you want to be sure that you’re not making a bad deal, you should ask an experienced attorney to review the agreement before you sign it. In most cases, the judge will honor your agreement. However, if a party without a lawyer agrees to a property settlement that awards more than half of the property to the other spouse, the judge may want to investigate before approving it. No court wants to see a spouse walk away with an unfair distribution of property.
What If We Can’t Agree on How to Handle a Specific Asset?
If you and your spouse can’t reach an agreement on property and debt division, you can eliminate the issue by selling the asset and dividing the profits. For example, in most divorce cases, the couple will sell the marital home, subtract the mortgage debt, and split the proceeds. However, if you can’t decide what percentage of the profits each spouse should take, you may have to ask a judge to decide for you. If you’re going through a divorce, and you have concerns about property and debt division, you may want to seek legal advice from an experienced family law attorney in your area.
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It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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West Jordan, Utah
84088 United States
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