Why You Should Not Move out of Your Home During your Divorce

Once a married couple has decided on divorce, it’s customary for one spouse to move out of the family home. This may be beneficial in reducing tensions in the household, and in extreme cases, necessary to ensure the safety of one partner and their children. But acquiescing to this custom could be the worst mistake you make in your divorce. Removing yourself from your residence could have a ripple effect on the issues of your divorce, all negative.

Here, briefly, are the consequences you could suffer by moving out.

  • Your claim on your home — If you are like most married couples, the family home is your greatest asset. When you move out, you send a signal that you are not attached to the home. This can come back to haunt you went it’s time to divide your marital assets. If you’ve already conceded that your spouse has a greater claim to the home, it will be hard to convince a judge otherwise. And, since your home might represent the lion’s share of your marital estate, there might not be enough assets to compensate you for surrendering your home. The best you might hope for is that the court awards you equity in the home, which is meaningless until you sell it, and utterly worthless if your spouse intends to live there the rest of his/her life.
  • Your chances for custody — When you move out of your family home, leaving your children behind with your spouse, you’re setting a precedent for custody. You could be indicating to the court that your children are best served by living in the home they’re used to with your spouse as the primary caretaker. You’re also limiting the time you can spend with your children during the divorce process since you’ll be relegated to scheduled visitation. This sets a precedent that you will be less of a presence in your children’s life than their other parent. The longer the divorce process lasts, the more firmly this arrangement is imprinted on your future. Unless you have the means to secure a residence for yourself, which is also suitable for your children to live in part-time, you will no longer be a co-equal parent, but simply a “visitor” with occasional privileges.
  • Your financial future — Supporting one residence in the New York area is expensive enough. Paying for two can wipe out the discretionary income of even the highest earners. Suppose you can’t afford a place on the scale of your family home. Would a court approve of having your children live there half the year? Courts generally favor maintaining children at the standard of living they would have enjoyed if their parents had stayed together. If you can’t provide an equal experience, you might be saying goodbye to your hopes of equal joint custody. And if you do go all in on a second-family home in greater New York, how will that added expense impact your plans for your children’s education and your own retirement?

In many situations, it is far better to stake out a corner of the house for yourself. If you have a guest bedroom or a home office, it’s far preferable for you to hunker down there than to rent an entirely separate residence.

Staying in the home, as long as the arrangement isn’t openly hostile with your spouse, is better for your children’s peace of mind, too. You can see them daily and reassure them that no matter what happens with the divorce, you aren’t going to abandon them. Your presence in the home might also dissuade your spouse from bringing home a paramour, which would be awfully disturbing for your children.

If your spouse wants you out, make it clear you won’t go without a court order. Your spouse would then have to make the case that you present a threat of imminent harm. That would be a tough argument to win, if there’s no history of domestic violence in your relationship. Presenting baseless accusations isn’t going to reflect well on your spouse when the judge in your divorce focuses on the question of custody. By positioning yourself as the reasonable party, you lay the foundation for a favorable ruling on custody, as well as home possession.

Many spouses vacate the premises thinking that if they accommodate their spouse on this issue, future negotiations will go more smoothly. But all you do is signal to the opposing party that you’re willing to forfeit your rights to keep the peace. Such appeasement never leads to positive results, so we recommend that homeowners always stand their ground.


Dror Bikel

Dror Bikel co-founded Bikel Rosenthal & Schanfield, New York’s best known firm for high-conflict matrimonial disputes. A New York Superlawyer℠ and twice recognized (2020 and 2021) New York Divorce Trial Lawyer of the Year, Dror’s reputation as a fearsome advocate in difficult custody and divorce disputes has led him to deliver solid outcomes in some of New York’s most complex family law trials. Attorney Bikel is a frequent commentator on high profile divorces for national and international media outlets. His book The 1% Divorce - When Titans Clash was a 5-category Amazon bestseller.

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