Many couples who are having serious marital issues often decide it would be better to live apart while they determine what their next step is. One spouse may move out and go stay with family or a friend until a decision is made. Once the decision is made, it is not uncommon for the spouse that moved out to eventually get a place of their own while the divorce process proceeds.
However, some clients often ask if they are required to move out of their home before they can file for divorce. The short answer is no, in many states you are not required to live in a separate residence from your spouse in order to file for divorce. Read on for more detailed information from one of our divorce attorneys.
Year ago, in order for couples to divorce, not only did they have to have grounds to file, but they were also required to prove to the court that they had not lived together for an extended period of time. Many couples would file for a legal separation as the first step towards eventually filing for divorce. Over time, there was a broader interpretation of what “living separate and apart” meant under the law it was not uncommon for an individual to file for divorce even though they were still living with their spouse, proving to the court that although they shared the roof over their heads, everything else about their lives were separate.
As more and more states have done away with the divorce grounds requirement, so too have many states have done away with the separation requirement. If a couple agrees that their marriage is over, they can proceed directly with the divorce. If the couple cannot agree that divorce is the best course of action, then the court will then require a separation period before the divorce can be granted. A divorce attorney can advise you on what the exact law is in your state.
Potential Issues to Moving Out
Although there is no legal requirement to moving out before filing for divorce, it can have a negative impact on the final divorce and child custody settlements. If you leave the marital home before divorce is filed – and without any kind of written agreement with your spouse – they can ask for sole ownership of the home as part of their divorce settlement. If the spouse is living there with the children, this could be even more of a reason why a judge would decide to grant ownership of the home – and primary custody of the children – to the spouse who is currently residing in the home. Family court judges do not like to upend the lives of children if it can be avoided. If you move out first, you could be giving your spouse the upper hand in negotiations.