Should you stay or should you go? The decision to move out of the marital residence during a divorce is never simple. In this episode, Kevin and Pat discuss the pros and cons of moving out of the marital residence during divorce, including the legal, financial, and personal implications. And, if you intend on moving out, they tell you how to best go about it to have the least disruption and impact.

Episode 10 Transcript:

Kevin: I’m Kevin Handy.

Pat: And I’m Pat Cooley.

Kevin: And this is episode ten of the Divorce Rulebook podcast – Can I move out of the house during divorce? So, this is a question I think that comes up really often and I was actually just talking to some friends getting ideas for podcast topics and this was the first thing that came up was, I want to know if I was going to get divorced, can I move out of the house? And I think to a lawyer, it’s kind of a funny question because my thoughts like, what’s keeping you in the house? Nobody’s going to make you stay in the house. But I guess they’re really thinking, what are the legal consequences of moving out of the house? And some things that people have brought up when asking this question to me were, hey, isn’t there abandonment? Like, am I going to have some legal consequences? I don’t know where the idea of abandonment came from.

Pat: I think having abandonment, if you go back in time to the old days when pretty much husbands were working and out of the house and there could be like financial abandonment and it had to do with getting the divorce. So it was kind of like a fault if you abandoned the home financially or just left and weren’t taking care of things. It was a way that the spouse could get money, but not necessarily have to proceed with the divorce.

Kevin: Sure. And I think at least in some of the fault divorces in our state, I think someone disappears for a year or two or something like that, you can then get a fault divorce. But I think it’s safe to say that is no longer a viable legal theory that I’ve never heard it come up.

Pat: And it certainly has no bearing on whether you can stay in the house, leave the house, or get the house in the divorce.

Kevin: So I think that probably what most people are interested in. What are the legal effects of moving in the house? How is it going to affect your divorce, practically speaking? So in this podcast we’re going to cover, number one, can you move out of the house? Number two, should you move out of the house? What are the pros and cons of staying, what are the pros and cons of moving, and then how to manage each situation. So if you’re going to stay in the house, what are the practical things you can do to make the situation as good as possible? And if you’re going to move out of the house, what steps do you take to make that go as successfully as possible? So let’s start with can you move out of house? Pat, if you get a divorce, can you move out of the house?

Pat: Well, again, sort of a silly question. I mean, people are free to move about the country and certainly you can move out, but it will have some will or may have some ramifications. So before you do it, you definitely need to know about the things we are going to talk to you about. Like I said, there’s no abandonment, so you don’t have to be afraid of moving out, that there’s going to be some legal consequences that will be negative to you based on abandonment.

Kevin: I can’t think of anything that would prevent you from moving out of the house. There’s no laws that would prevent you from moving in the house. Your spouse can’t take you to court and get you back in the house or anything like that.

Pat: No, no laws. It’s going to be basically practicality finances and basically strategy in your divorce.

Kevin: All right, so the answer is yes, you can move out of the house. That’s it for the podcast. Just kidding. So you can move out of the house. Then the next question is, but is it a good idea? That really depends, like everything else, and divorce on a variety of factors. And I jot down a few factors here. Number one, how bad is the living situation at home? Number two, what are your options for where to move? Where are you going to live? Number three, what are you going to do with the children if you’ve got minor children? Number four, what is your income? How are you going to afford to move out of the house? And number five, is moving out of the house a good strategy? And divorced. So they’re all the kind of things I thought about when thinking about whether or not you should move out of divorce.

Pat: Yeah, Kevin, that’s right. And I’ve got to say, like, the two through five of what you just said relate back to number one, because I always say no matter what the strategy, no matter what the circumstances, if the living situation is either dangerous or completely untenable, move out. Of course you can move out and we’ll deal with everything else. But definitely thinking about all of these aspects before you make that decision is real important.

Kevin: Yeah, I would agree with that. I think a lot of times I know I have counseled clients about, hey, it’s probably better if you stay in the house for one reason or another. And sometimes they manage to do it for a few months, maybe a year. But at some point, the living situation generally becomes untenable and they just have to move out. They just can’t stand living with their spouse or for other reasons, they just move out. So you can do as a strategy, but usually it only works for so long. On the other hand, there are a couple who managed to live in the house for a year or two years until the divorce is done. But those are pretty amicable divorces. All right, so let’s take a quick break and when we get back, we will talk about should you move out of the house, what are the considerations you should think about?

Pat: Hi, podcast listeners. Are you thinking about divorce but are worried about the cost and animosity associated with the traditional divorce process? Well, Snap Divorce has a better way for you to divorce. Through divorce mediation. Snap Divorce eliminates everything bad about traditional divorce. With Snap Divorce, there is no court, no dueling lawyers, and no endless delays. Our experienced attorney mediators help you and your spouse resolve your divorce fairly easily and amicably. Best of all, Snap Divorce does it for a reasonable flat fee. Schedule your free consultation now@snapdiverse.com.

Kevin: Okay, we’re back. And now we’re going to cover the topic of should you move out of the house? You know you can, but should you? And I wrote down three general categories of considerations personal, financial, and strategic. So with personal, it’s really do you want to move out of the house? What’s your personal situation? How bad is the living situation? What kind of thoughts would you put into that pat?

Pat: Well, what you just said, how bad is the living situation? You got to consider I mean, is it amicable? Is it calm? Can you kind of live together or do you need to get out? And is it violent or abusive? Is it a situation where it’s impacting the kids? Right? I mean, if the parties are arguing and there’s nasty things going on, remember the kids are watching and they’re seeing this and it can really negatively impact the kids. So separating sometimes is a better way to go.

Kevin: Yeah, I agree. I think ultimately most of our advice in here is only going to be applicable if the living situation is fairly good. If it’s bad, that is going to be the dictating force on whether you’re going to move out of the house or have to move out of the house. And with kids, the other factor people have to take into consideration when considering moving is like, what is the custody situation going to be? How are you going to set up a shared custody if you move out of the house? Are you going to take the kids with you? We talked about that a little bit in other podcasts. What do you do? Let’s say someone decides they’re going to move out of the house and they’ve got minor children now. What?

Pat: Well, that’s not only a consideration, but kids tie into a community, too. I mean, they’re in schools. So where you go is going to, I think, be our next kind of topic here. You got to consider if you have kids, where are you going to go?

Kevin: Yeah, that’s right. And it’s a tough question for a lot of people because you got the house and now you’re saying, okay, I want to move out. Where do I go? Do I get an apartment? Do I buy another house? Do I move in with my parents or in laws? And where can I get an apartment? Is it close to the kids schools? How difficult is it going to be? And then other things will be like how are you going to furnish the apartment? How much of the household goods you’re going to take? And then another point I thought of was who are you going to move in with and how’s that going to affect the divorce and custody. And mainly I’m thinking about a power more girlfriend or boyfriend. And that’s pretty common, that someone moves out and moves in with a boyfriend or girlfriend.

Pat: That’s right. And that’s something you really need to consider, and you really need to know the legal ramifications of that from both sides. But I’m going to even say more importantly from the side of someone who ultimately wants to get alimony or seek that. So that’s definitely a consideration that has legal consequences that you need to be sure that you’re aware of.

Kevin: Yeah. So at least in our state, moving in with a boyfriend or girlfriend, that’s the one thing that can really have legal consequences for the divorce. Because in our state, if you cohabitate, which is basically living with a member of the opposite sex, I don’t know now that same sex marriage is legal if it counts with a member of the same sex. But basically if you move in with a boyfriend or girlfriend, then you are no longer entitled to alimony after the divorce.

Pat: And just a word of caution. Ironically, no, I don’t think they’ve changed that law yet with regard to same sex marriages. So I guess it’s kind of we’re waiting to see. But the way the law reads is that you can’t live with cohabitate, and it can even impact it if you’re just going to live with a, quote, friend. I mean, even if you really are just friends, that could be considered cohabitation.

Kevin: Yeah. In your experience, though, at least in my experience, it’s fairly difficult to prove cohabitation.

Pat: It’s very difficult. And usually it depends on the person who’s doing the cohabitation admitting it, or it’s expensive hiring detectives.

Kevin: Well, yeah, I guess I’m thinking about the situations where someone’s got a boyfriend or girlfriend and they’re staying there four nights a week, and then you’re getting into like, what is the mail going to their house and who’s paying the bills. And it’s those sort of gray areas. I’ve had situations where someone just literally moved in with a boyfriend or girlfriend, and then it’s pretty clear, right, if they don’t have another residence.

Pat: That’s right.

Kevin: But frequently someone will maintain an apartment or something like that, but they really are, in all practicality, living with someone else. And then it becomes pretty difficult to prove that and can be expensive, like you said, hiring private detectives, going to court for a trial.

Pat: But there’s one thing you should be careful of. I don’t know. Ferry is probably in jurisdictions, but in the jurisdiction we practice in, if you move out at the beginning and move in with a boyfriend or girlfriend, you can collect temporary alimony, because that wouldn’t be.

Kevin: Just pause for 1 second. You can collect temporary I got to figure out I’m going to turn some airplane mood. Okay.

Pat: You can collect temporary alimony, but when it comes to the divorce, if you’ve been living with somebody, then there’ll be cut off. There’ll be no alimony going forward. So don’t let that initial temporary alimony trick you. You got to know that down the road, this collaboration could impact you and have a negative and adverse legal effect.

Kevin: All right, so let’s move on to financial considerations. How will you pay for it? My thought was, who’s going to maintain the house once you’ve moved out? Are you going to be responsible for a mortgage contribution? Will you gather pay support? And we just talked about almond again, cohabitation. So when someone moves out, it really does trigger a whole bunch of financial considerations and consequences. The main one I think about is someone’s moving out, and they’re usually thinking like, well, how am I going to pay for an apartment? And if they’re the primary breadwinner and they’re used to paying for the mortgage, they think like, well, how am I going to pay for an apartment? And the mortgage on the house, what are your thoughts on all that?

Pat: Well, if only one moves out and it’s the primary earner, the burden basically is cash to the person who remains in the house to pay the mortgage. However, first of all, you got to think of your credit, so you’ve got to make sure it’s getting paid. And second of all, you’re going to be looking at, if you’re not paying the mortgage, pretty sure that that spouse that doesn’t make as much as you are going to be looking for support. So you’ve got to take that in consideration because that’s a new payment you’re going to have to make as well as your new expenses for your overhead in your apartment or household.

Kevin: Yeah, I think the first financial thing that people who are listening to our podcast should consider if they’re thinking about moving out of the house is support, because typically in pretty much every jurisdiction where I’m generally familiar with the laws separating physically moving to do different residences is what triggers an obligation for support. If you’re living together and one person is paying the bills and stuff, usually there’s not going to be an obligation for support.

Pat: And you know, either way, whoever is moving out, if it’s the financially superior person, well, they may think, oh, I make a lot of money, but they’ve got to take into consideration that potential payment. And if it’s the dependent spouse that’s moving out, well, my advice usually is get your support in line or at least get it started well in advance of that move.

Kevin: Yeah. So typically I’ll meet with a client and the first thing if they’re thinking about moving out, the first thing I do is calculate, just say they’re the party is going to be receiving support. I’ll calculate support and say, hey, you’re expected to get X dollars in support. Take that into consideration when you’re looking for an apartment to rent. Sometimes people even be thinking about buying a house and the mortgage company will want to know, hey, how much support you going to get, can you afford the mortgage? So we’ll run support calculations and get them a number. And like you said, the strategy we take is file for support a month or so before you’re going to move out. Because in our court system here, it takes about a month to get to court to get a support order. So then you’re moving out a day or two before your support hearing. Now, if you’re the person who’s the higher wage earner, the person who’s paying support, like you said, you got a lot more calculations. In fact, you have to figure out, I’m going to move out, how much support am I going to have to pay? And then at least in our jurisdiction, there’s something called a mortgage contribution. So now you’re paying the spouse’s remaining house support plus a mortgage contribution. And then you also have to consider, like you said before, are they actually going to pay the mortgage? Because frequently they’ll start getting support and not pay the mortgage.

Pat: Yeah. And if you’re the payor, sometimes you want to consider, is it better for me to just keep paying some expenses for the dependent spouse? Because you might get away with paying a little less than what the actual support order would be if you just continue to maintain expenses. So we’re also always looking at, from the view of the dependent spouse, if you’re getting more by direct payments, then maybe you won’t file support. So we’re always looking at that dynamic as well. Are there in kind payments being paid and are they more or less than what the support would be?

Kevin: I think when a person starts thinking about moving out of the house during divorce, someone else moves out of the house and that’s when the sort of the finances start being divided and you start realizing like, wow, I’m going to have a lot less money to live on. And I think this is where some of the financial realities of divorce really hit. And you realize most people are realizing I’m going to have to live a totally different lifestyle because now I have to support my own household. I may be paying support or I’m getting way less money than I’m used to.

Pat: That’s right. You now have two households, and with the same income coming in, you’re going to be stretched thin. And so usually it will also force a dependent spouse to become employed or increase their employment hours so that they can make those ends meet.

Kevin: All right, so then let’s move on to the strategic considerations about whether or not someone should move out of the house. I have, number one, do they want the house? Do they want to get the house and divorce? So with this, supposedly there’s not supposed to be an advantage one way or the other. If someone moves out, they can theoretically still ask for the house and divorce. I would say that though there is probably a slight advantage of the person remaining in the house to get the house to get awarded the house and divorce.

Pat: That’s right. I mean, typically you’ll be advised that if you want the house and can stay in the house, you probably should stay in the house because for whatever reason, I think under the law, theoretically, it’s not supposed to have any weight, but clearly it does. That person is in the house. I will say in the majority of cases, I believe that if you’ve separated, the person who stays in the house does have the greater advantage. I did have a case one time where the wife stayed in the house, but the husband wanted it. And when we got to court, we actually went to the trial on this, and both sides were telling the judge they wanted the house and a fairly new judge, but he had them bid closed, sealed bids for the price of the house, and the highest bidder got to buy the house. Of course, the other one would get more money because they’d be offering more for the value of the house.

Kevin: But I think that’s a great idea that’s really get the maximum value for the asset.

Pat: That’s right. And the one who can pay the higher amount, well, the other one doesn’t lose out. They get more money because now they’ve set the price of the house higher. But definitely something to consider that is staying in the house if you want to retain it.

Kevin: Interestingly. I think it’s pretty unusual that both parties want the house besides the case you just mentioned. I’m not sure I can think of another case where both parties wanted the house. Usually one person wants it and the other person doesn’t. Usually the person who doesn’t want it really can’t afford it.

Pat: It’s financial. And I agree with that absolutely.

Kevin: And I’d say that the house is probably kept in maybe 50% of cases and the other 50% it’s sold. I think that’s about right, because in a good amount of cases, neither party can afford the house. They have the house that was meant for a couple with kids or whatever. Now, we mentioned before, you’re separating, got a lot less money, parts just can’t afford to continue to maintain the house, and so both ends up being sold and the money divided in the divorce.

Pat: Right. So if you don’t want the house or you can’t afford the house, or you think neither party can afford the house or you can’t afford it, then moving out is not no longer an issue. You could move out. You don’t have to worry about that.

Kevin: Do you have something else to add?

Pat: Well, there’s something I do want to add that to keep in mind, if you do move out, sometimes that can cause a delay in the divorce. This goes with strategy. But sometimes I tell people. Stay in the house because if the other spouse wants you out. Even if you’re the one who can’t afford it. If you stay there. I always say you’re the thorn in their side that will make the case move and the advantage. Maybe a negotiating point. That if you’re in the house and they want you out bad enough. You might get a better deal.

Kevin: That is true. I can’t think of any case that I’ve used that strategy in, but I know I’ve heard you mentioned that around the office once or twice.

Pat: Right.

Kevin: We can talk about the layer. It is an interesting topic about what happens if you want your spouse out of the house, you want to stay in the house. So it’s kind of the opposite of the art. Can you move out of the house? And we’ll talk about this in a few minutes. Can you get your spouse out of the house?

Pat: Right.

Kevin: So the next strategic consideration I had was do you want to avoid paying support or do you need support? So as we mentioned earlier, typically you and your spouse have to be living separately in separate residences to have an obligation of support triggered. So if you are the higher earning spouse, but you don’t want to pay your other spouse support and you’re thinking about moving out, you might want to consider staying in the house. And I’ve definitely advised clients, look, try and stay in the house as long as you can because you don’t have to pay support and the bills for.

Pat: The house may be less than the amount of support that you’re going to have to pay. So you may as well stay and pay those bills to keep the finances down. Yeah.

Kevin: And you’re just saving I mean, even, number one, you’re not paying support, but you’re also just saving money because you’re not incurring the expense of a separate household. So I will encourage people if they can tolerate it to stay in the house. Now, if you need support, maybe your spouse is paying the bills of the house but not giving you any money and you don’t have a job and you need support, then that’s going to lean towards moving out of the house. In those cases, I would say most of those people tend to move in, at least initially with a relative, the party moves out, losing with their parents or something like that, or a friend, and then gets support and then starts to get themselves back on the feet. And I mentioned before, do you want to save money? So look, divorce is expensive. It is going to be costly to set up two households. So if you can stay in the house and it’s tolerable, it may be a good idea just to literally save money.

Pat: And let me just give the antithesis to that. I did have a client once that she wanted to stay in the house. Let’s say I think she was getting about $6,000 a month, was a good case in support, but the mortgage on the house was like $5,500 a month. In that case, I was urging her move out of the house. If she moves out of the house and gets an apartment for 2500 a month, now she’s saving money. So that’s another consideration. Are the expenses of the house so much that you would do better financially on your own?

Kevin: If the house is a burden, then sometimes both people want to get out of the house and get out of that bird and then the house gets put up for sale, hopefully. But yeah, it doesn’t make sense to keep an albatross around your neck. It’s true. With really any assets. I can think of a client that came in and I guess his wife had moved out. He was going to be paying support. I was looking at his finances and he had like three cars. He had like three car payments. I’m like, take two of the three cars back to the dealership. You have to cut your expenses. And he ended up doing that. Can you think of any other strategic reasons like to stay in the house or to move out?

Pat: Well, I think we mentioned this in our custody discussions, sometimes as an advanced advantage in your custody case. Again, the thorn in the side staying.

Kevin: In the house definitely can be an advantage in custody. If your spouse moves out and you’re in the house, there is an inclination for the courts to sort of keep the status quo.

Pat: That’s right.

Kevin: You’re already in the school district. Yeah, definitely an advantage for custody right when you’re moving out and you’ve got kids now, you have to consider not just like, okay, I can get a one bedroom apartment. You have to think like, well, if I’ve got two kids and it’s a boy and girl, I need a three bedroom apartment. You have to start thinking strategically, because when you go to court in custody, people often be, like, bringing pictures of the place they moved, hey, I’ve got room set up for the kids, that sort of stuff.

Pat: And those financial considerations. Again, I did talk about the case with the high mortgage, but there are also cases where there’s a really low mortgage where they’ve had it for years and the mortgage is less than they’ll pay in rent. So it’s so many different things you have to consider.

Kevin: All right, let’s take a break, and when we come back, let’s talk about how to manage each situation. If you’re going to stay, what’s the best way to manage your situation, and if you’re going to move out, how do you go about moving out? How do you make that transition as smooth as possible?

Pat: Hey, podcast listeners, are you thinking about divorce but are worried about the cost and animosity associated with the traditional divorce process? Well, Snap Divorce has a better way for you to divorce. Through divorce mediation, snap Divorce eliminates everything bad about traditional divorce. With Snap Divorce, there is no court, no dueling lawyers, and no endless delays. Our experienced attorney mediators help you and your spouse resolve your divorce fairly easily and amicably. Best of all, Snap Divorce does it for a reasonable flat fee. Schedule your free consultation now@snapdivorce.com.

Kevin: Okay, we are back from break. So, Pat, let’s talk about if you’re going to stay in the house. What’s the best way to manage the situation when you’re estranged from your spouse but you’re trying to live together?

Pat: Well, normally part of the idea is that you want to be able to prove a separation for legal reasons in the divorce. So taking up separate rooms. So in other words, establishing a part in the house, whether you have an extra bedroom you can take over or a basement kind of separate actually, physically in the home is one of the considerations.

Kevin: The basement seems to be a pretty.

Pat: Popular option, and the couch not so popular, but it happens sometimes.

Kevin: Usually that probably already occurred like once. The divorce is kind of percolating and pending that someone’s living in a separate room or the basement or something like.

Pat: That, and hopefully that works. I did have a case where people were sort of fighting over the master bedroom, moving each other’s stuff out, and it can get bad.

Kevin: So when you’re living together, then you’ve got all right, what do you do about bills so you still have to pay? What do you see clients do about paying the bills of the house?

Pat: That’s always a question. It’s kind of a nightmare. I mean, you can kind of hedge your bets and see who’s going to pay. What if there was an income superior spouse and they’ve been paying the bills? Probably they’ll continue. I have people more obviously these days come in and they’re both work and they both have viable jobs. I usually. Say you’re both living there. Maybe the fairest way is to kind of do it proportionately as your incomes compare.

Kevin: Here’s a situation that I think we probably both see. Typically it’s clear it’s going to be a divorce. The parties have been depositing their paychecks into a joint account and the bills are paid out of there. One of the parties changes their direct deposits to their own account.

Pat: Right. Well, again, that’s scary. First of all, the other party will probably do the same. But if you’re going to do the splitting bills like I suggested, I usually would recommend keep the joint account open, keep your separate accounts and contribute as needed to the expenses. You’ve got to do a budget. You got to say these are the bills, these are proportionate shares. And that’s one way to do it.

Kevin: Another way, do you do a 50 50, or is it done in proportionate income?

Pat: I recommend most of the time that proportionate to their incomes. But listen, here’s the other thing, and we had a case years ago, you can’t force somebody to contribute to the bills, so you might have that dead weight there who’s not going to put any money into the account. The other party happened to want to keep the house. It was the wife and it was our client. And so she was paying all the bills and she felt like that was so unfair. But we said to her, you got to keep paying the bills or the house off to be sold or go into foreclosure. And the court usually won’t make the person contribute. Now, there is special relief, so sometimes you can go in and get that worked out. But it’s a tough situation.

Kevin: It’s definitely a though issue.

Pat: Yeah.

Kevin: And I think the situations I’ve seen most often are, number one, people sort of a couple maintain the status quo. They keep putting their incomes or most of their income into a joint account. The bills keep getting paid out of that until the divorce. And the other one would be someone just stops paying for anything and saving money. The other person sort of left holding the bag. And I’d like to say that at the end they would get credit for everything. But I think most times I find the court just brushes that aside.

Pat: Yes, I think it’s something you want to try to deal with during the separation, because if you’re expecting to be reimbursed or any kind of fairness, they’re not going to look at that. So what you do during separation, don’t expect there to be a recalculation later.

Kevin: So we mentioned this before, with support, there’s typically not going to be any support. So you’re going to just have to rely on your own income. Maybe if your spouse gives you any money while you’re living in the house. How does custody work if you’re living in the same house?

Pat: Bat well, at least in our jurisdiction, I would say most you can’t really have a custody order if you’re living together because you’re still both parents, the kids are living with you. Sure. It can get a little sketchy when Thanksgiving dinner comes around and you say you’re taking the kids to your house and your spouse says, no, I’m taking the kids to my parents house and there’s no custody order. But unfortunately, you’re left to trying to work things out in the custody. They’re typically not going to enter a custody order while you’re living under the same roof with the kids. Yes.

Kevin: I think people just have to do the best to manage the situation, the custody situation. Try and just do whatever you did before. If someone takes the kids to sports, a person should continue to do that. How about nesting? Have you seen once you explain to the listeners what nesting is if they don’t know.

Pat: So nesting is a means of actually sharing the house. No decisions have been made on who’s going to get it. You both want to be there. There’s kind of that idea of kids and struggling over who gets the kids and finances come in where neither party can maybe afford to move out.

Kevin: Sorry, I’m talking about the idea that the kids stay in the house.

Pat: That’s right.

Kevin: And the parents will take turns coming and staying at the house. So in other words that’s right. One parent is at the house Monday, Tuesday, Wednesday and the other parents of the house Thursday, Friday, Saturday and so forth. And so when one is there, the other one is not there. But that can get pretty expensive because now you need three places to stay.

Pat: That’s right. If you have parents or something or friends where you could stay. But I’m going to tell you this. When people ask me about nesting, my initial advice is don’t do it. When people are doing nesting, in all of the cases I’ve had, and it’s only been a handful where people are nesting, it doesn’t take long before we have to end that relationship.

Kevin: Yeah, it’s like it most lasts a couple of months because it just becomes so impractical.

Pat: It might be a band aid to fix until you do get your separate residences established, but it is normally or typically not a good situation.

Kevin: And with nesting, you kind of run into the same things you’re talking about before. Who’s staying in the master bedroom? Who’s cleaning the house? The practicalities of doing that can be very difficult. What about the end game? I think if you’re staying in the house, you really need to have the end game in the front of your mind. Are you staying there for finances? If so, how long are you staying there because you want to be the part that buys out the house? Are the two of you working towards selling the house? Should you be getting ready? I think that’s important to keep in mind if you’re staying at the house.

Pat: That’s right.

Kevin: So we talk about people living together during divorce. How about people who live together after divorce?

Pat: Well, we see that happening. I got to say, in terms of our mediation firms, snap Divorce, that we see more of that for some reason, since the people are coming in with an amicable desire to settle their case, they’re more likely to kind of extend that and do that.

Kevin: I had a case where both of them were retired. They had very limited income. They’re getting divorced, but neither one of them had enough money to move out of the house. So they went through the whole process. They got divorced, and they’re both living in this house.

Pat: You got to admit, though, it would be a little unusual.

Kevin: It is unusual.

Pat: It does happen. It does happen. And that’s with people who really get along, that they can be on the doors, be friends.

Kevin: All right, so let’s talk about moving out, because that’s really was the topic. Can I move out of the house? So let’s talk about how do you go about moving out of the house. So number one, where do you go? Do you buy, do you rent? What do you think about someone buying another house during the divorce?

Pat: Well, that’s okay. We see that in cases comes up.

Kevin: So if you’re going to buy a house, the question comes up, first of all, we’re going to get the money for the down payment. And number two, does your spouse now have an interest in the house? That’s always the first question, hey, I want to move out. Or maybe someone has been moved out and they find a house they want to buy. Number one question is, can I buy it, and does my spouse have an interest in it? And I think that’s actually a really good question.

Pat: It’s an excellent question because absolutely do not go out and put an offer on a house and buy a house without considering this, because there are legal things that could preclude you, for example, and it depends what state you’re in and what jurisdiction. But in our jurisdiction, if you’re not divorced yet and you’re buying a house, your spouse has kind of what they call a homestead right in it. And so while you can do it, don’t be surprised when the mortgage company asks you to get your spouse to sign off of their interest in the new house. And now all of a sudden, your ability to purchase a house is dependent on your spouse cooperating with you. And if it’s an ugly divorce, good luck. So consider that also, where is the.

Kevin: Money coming from for the down payment if you are taking marital money? Oh, I’m going to take $100,000 out of this investment account we had during the marriage. That house is going to be now a marital asset.

Pat: Yeah, theoretically, years ago, it used to be a real concern because if it’s a marital asset, then if it increases in value, is that marital more often now? I think they look at what marital money did you take to invest and they consider the rest kind of acquired post separation. But you do have a risk there. I mean, it’s certainly a viable argument to say, hey, he took apart this marital asset and invested it in this real estate. And if you take a while to divorce and it increases in value, and now the current value could potentially be marital. And you’ve been the one paying the mortgage.

Kevin: Yes. I think if you’re going to move out and buy a house, I think you better have your spouse on board with cooperation, willing to maybe do an interim agreement that says, yeah, the house is yours, they’ll sign off on for the mortgage company to say they’re not going to start any interest in the house. I think getting an apartment is much easier.

Pat: Right. And you got to know where you’re going to live, so you got to be sure when you buy this house that this is pretty much where you want to settle. You know, I mean, sure, you can sell it later, but that creates multiple settlement charges and so forth. So it is a good idea to take a breath, maybe rent a place for a period of time while you see what’s going to happen in the divorce and the custody.

Kevin: Yeah. Allow things to settle down, see what are you actually going to get out of the divorce. What about moving in with parents or friends or relatives?

Pat: Well, if you can do it, it can be a way to save money. They’ve got to have room. If you’re moving in with the kids, you’ve got to make sure they’ve got room for the kids.

Kevin: It’s pretty common.

Pat: It’s very common.

Kevin: I’d say a parent or parents that only moves in with them for a year or two on the divorce. Penny, would you say that’s more common than someone getting an apartment, or do you think someone getting an apartment is more common?

Pat: Well, I think it depends on financial ability. Obviously, if you’ve got a good job and you can afford an apartment, you’re probably going to elect to do that. But there’s certainly a lot of people that wouldn’t be able to afford to move out need to move out, but can’t afford to buy a place or even rent. And so I think it’s very common that you’d live with a parent. Very common. And often the kids go with you.

Kevin: It doesn’t really negatively affect the divorce at all.

Pat: No.

Kevin: So when is the best time to move out? How do you go about moving out? Like the actual physical process of moving out? Do you have any thoughts about that?

Pat: Well, the best way to do it is always with advanced notice and with some things worked out. Are you taking personal property? Does your spouse agree? Obviously, if you can talk and say, I’m going to take this property, you’ll have some furnishings to be able to take, and do you have custody resolved I’ll often tell people, stay in the house until we get some kind of custody order in place, or at least we get that started. That’s if you have kids.

Kevin: Sure. Then there’s the situations, though, where maybe a spouse is going to be violent or they’re going to be disruptive and be at the house when you’re moving out. In those situations, I will suggest that the party wants to move out. Plan for a day when their spouse is away at work and do it secretively that they’ve got the movers set to come. Spouse goes off to work, movers, show up, an hour later, you move out. Whatever you’re taking, consider it. This is your one and done chance to get what you want out of the house. And then once you’re out, you then let your spouse know you’ve moved out. And as long as there’s not like violence or threats of domestic abuse and you say, I moved here, maybe I took the kids, and here I’m proposing the custody schedule, that sort of thing.

Pat: Yeah. Just be aware there could potentially be a glitch in that scenario if the neighbors are watching and your spouse is alerted and they show up at the house while you’re moving out. I had that case. My client called. He was trying to move out. Oh, I’m sorry. It was his wife trying to move out. And he said, she’s here, she’s got a moving van and they’re taking furniture out, and there’s a police officer here, but they won’t stop her because they say it’s her stuff. And I said, Put the police officer on the phone. And he did. And I said, So you’re not going to stop her? Well, no. I said, well so if my client takes the stuff off the moving van and puts it back in the house, you’re not going to stop him either, right? No. Put my client back on the phone. So I think it took about two pieces of furniture and the moving company threw up their hands and left the truck there and said, let us know when you work it out. And then they did.

Kevin: Yeah. Obviously, best to work it out in advance, and you have to do it through attorneys or immediate or whatever, but there are situations where you get to sneak in and get everything.

Pat: I agree. And your word of warning is good, that consider this your last chance. So take what you’re going to take. And we’ve said this before, one of our prior podcasts, don’t take everything. Don’t wipe out the house. Try and divvy things up. If you have two TVs, take one. If you have two couches, take one. Be fair.

Kevin: So once you’re out of the house, can you get back in?

Pat: Well, that’s a really good question, and it sort of depends on how definite your move is. If you’ve acquired a place to live and you’ve moved on, this move out, it’s going to be a little tricky if you’re both on the deed. It’s a jointly owned property. You always have the right to access the home unless the courts otherwise precluded you.

Kevin: I don’t think we covered this before, but you brought it up before we started the podcast and I thought it was pretty interesting. Can you get your spouse out of the house if you want to stay in the house?

Pat: That’s right. And look, it’s a marital home regardless of who owns it initially. You can’t just kick somebody out. So I’ll tell people, no, your spouse can’t throw you out. And I’ll tell clients who want to do that, no, you can’t throw your spouse out. Now, with that being said, there are some remedies. If it’s a situation where there’s abuse or someone’s being particularly volatile, we have special relief in the divorce where you can get somebody evicted. We have a protection from abuse action where somebody can be evicted from the home.

Kevin: So we call it exclusive possession of the male residence. So if the conduct doesn’t rise level of domestic abuse, but they’re making the situation, living in the house are difficult, you can theoretically ask for exclusive possession. Can you think of what kind of fact patterns would warrant exclusive possession?

Pat: Well, sure. There’s a case that involved children. So I’ll tell you right now, if there are children and there is a lot of antagonism going on, just.

Kevin: Coming.

Pat: In late at night, screaming and yelling, waking up the household, bringing other people into the home, having wild parties, there’s a lot of kinds of behavior, but.

Kevin: When that behavior have you seen cases where someone brings a boyfriend or girlfriend into the house?

Pat: Absolutely. In fact, I’m litigating one right now. The husband locked the wife out and said, you have to call me to get in. And she found the woman’s slippers under her bed. I mean, yeah, it happens.

Kevin: Yes, I think things like that would be a warrant exclusive possession.

Pat: That’s right. But let me say this. I do find that courts are reluctant to award it, especially when both people own the home. And if both parties have the ability to get out, I’ve had judges kind of say a pox on both your houses. You guys deal with it, move out if you don’t like it.

Kevin: Sure. What if one person owns the house and this comes up from time to time? Maybe it’s a pre marital asset. So one of the spouses owned the house before the marriage. They’ve been living there. Now marriage is over. The spouse who owns the house wants the other spouse out. Can they get them out?

Pat: Well, I think if there’s a divorce action pending, I mean, you could technically evict somebody. But when you’re married, I don’t think you’re going to be able to do that because I think the divorce court is going to step in and say, no, you guys live together, you’re married, and until we finish the divorce, that person has the right to live there. There’s unique circumstances where the spouse who doesn’t own the house live there, even though it belongs to the other spouse, they move out. Various circumstances, but I think it’s really tough if you own the house but you’re living together as a married couple. I think the divorce court is going to protect that non owner spouse.

Kevin: The only case I can even come up in was a case where the husband took it to court and he asked for special relief in the divorce action to get the wife removed from his premarital house. And the judge in that case said, I can’t give you a special relief, but you could file for eviction. That’s a more difficult process.

Pat: Yes, I agree. There’s a divorce act. My concern would be if they hear there’s a divorce action pending. I don’t know. I don’t know what the courts would do in the eviction proceeding.

Kevin: Yeah. When I do prenups after that case, I started writing in my prenups that if there’s a pre marital house, that the non owner spouse agrees that to move out, and if they don’t, the court can award special relief. But that’s sort of an aside.

Pat: Yes, that’s good.

Kevin: So I think the summary of moving out really is planned. Well, make sure you’ve got a plan to get your stuff out of the house. If you can, try and get an agreement in place. If not, then you’ll have to set up to move out when your spouse isn’t there. Make sure you’ve got support in place. Make sure you’ve got your finances set up. Think about the bills, what bills are existing in your household? Can you cancel any bills that your names are on? Cancel join credit cards. I know we mentioned about mail. Make sure your mail is forwarded. I forgot I had this note. If you’re staying together, I’m just going to back up a little bit. If you’re staying together, you need to think about the mail as well. I’ll often tell people, get a post office box if you’re going to continue living the same residence, because you’re going to need somewhere to get your legal mail. You don’t want your spouse getting letters from your attorney and things like that.

Pat: Yeah, absolutely. And the idea of forwarding it either way, I mean, forward it from your home to your post office box or forward it from your marital home to your new address. But you’re going to want right. Your attorney’s information to be going to you and not to be seen by your spouse.

Kevin: All right. So I think that kind of wraps up. I think the conclusion is you need to really balance all the considerations on whether or not you’re going to move out of the house, the financial considerations, the personal considerations, strategic considerations in the divorce. But ultimately, and I think we both agree, you got to put your mental well being first if living together is just not tenable from an emotional, personal standpoint, you’re going to have to set aside all the other considerations and move out. You have to stay with friends, relatives until you get back on your feet.

Pat: And important reminder is, even if you move out, you don’t lose whatever right you have to the equity in that home. So in the end, you are protected financially.

Kevin: That’s right. All right, that wraps up this podcast. I’m Kevin.

Pat: And I’m Pat.

Kevin: Thank you for listening to this episode of Divorce Rulebook podcast.