Should I stay in the family home during my divorce?

Divorce - The Cate Law Firm

Should I Stay or Should I Go

If you and your spouse have decided to pursue a divorce, you may be wondering if you should stay in the family home or move out. As with most things involving divorce, there isn’t always a clear-cut answer. Both of you are likely emotionally and financially invested in the home. So how do you decide whether to move out or wait until your spouse does?

Safety Considerations

You have two options in situations where your safety, or that of your children, is at risk. The first is to take your children with you and move out. However, it’s important that you get a court order for temporary custody as quickly as possible. If something has happened that poses a danger to your children to stay in the house or with your spouse, you may be entitled to an emergency hearing so the court can enter an order very soon after you file in order to protect you and/or your children. If your spouse has been violent or threatening with you or your children you may also consider seeking a protective order from the family court to force your spouse to leave the home or limit any contact. This may require assistance from the local police department if your spouse becomes belligerent or refuses to leave. If you find yourself in such a situation, you may find help through SAFE Homes for temporary housing and other resources until you get to court. This would also be the time to consult with an experienced South Carolina Divorce attorney so you can better understand your rights in the divorce proceedings ahead.

Financial Matters

It’s often challenging enough for a couple to support one household, let alone two when they decide to divorce. This economic reality forces some husbands and wives to remain in the same home when it would be better for everyone if they lived apart. Those who do elect to live apart have some tough decisions to make. When the spouse who earns the most money moves out of the family home, he or she should expect to continue paying many of the household expenses. That usually means accepting a reduced standard of living. Eventually, the spouse who stays in the home may need to give up property or money when assets are divided to make up for the benefit of remaining in the home.

It’s a common misconception that the spouse who remains in the home upon separation is the one entitled to stay there indefinitely after the finalization of the divorce. Although it may be easier to stay in the home on a temporary basis if your spouse is the one who moved out, it doesn’t necessarily follow that you would stay in the house for good. Financial considerations such as, the ability to afford the mortgage and other expenses, and ability to pay a spouse his or her portion of the equity in the house, may affect whether a person who stayed in the house initially also stays in it long-term. If neither party can afford the ongoing expenses or the equity payout, they may agree to sell the house and equitably divide the proceeds. That is often a viable option for couples looking to downsize and minimize expenses from when they lived in their marital home.

It’s important to consider personal property within the home as well. Sometimes the spouse moving out takes only his or her personal items, and sometimes the parties go ahead and agree at the outset on a fair division of personal property. Either way, the personal property, and furnishings in a marital home remain marital assets until they are divided by court order. It is advisable to take at least a general inventory of the major personal property that is taken as well as that which is left so it can be properly accounted for in the asset/debt division. Your experienced Spartanburg Divorce Lawyer can help you work through any financial issues surrounding your divorce.

Child Custody Considerations

Family court judges recognize that frequent moves are disruptive to a child’s life. Parents who remain in the home with the children often feel they should have the right to remain there. The parent who moved out can raise the argument, however, that it was in the children’s best interests to move out in order to reduce conflict.

The easiest way to avoid this dispute is for you and your spouse to establish a written parenting agreement, including a general visitation schedule, before one of you moves out of the family home. This provides predictability for your children so they know the parent moving out isn’t going to be out of their lives. In the event you and your spouse can’t agree on a parenting schedule, it would be advisable to file an action with the family court sooner rather than later to ensure court-ordered custody and/or visitation time.

South Carolina’s Physical Separation Law

In order to provide stability for their children, some couples employ creative strategies such as letting the children stay in the house while the court action is pending and the parents trading off living there with them. Others divide the house into separate living quarters. Keep in mind, however, that you and your spouse must live at physically different addresses for at least one year to file for a no-fault divorce. If you are filing based on fault grounds such as adultery, physical cruelty, or habitual drunkenness or drug use, you do not have to physically live apart to file but you will certainly want to consult with a family law attorney to navigate that potentially difficult period while you are waiting for a temporary hearing. Generally, if you are certain that reconciliation is not possible, it’s in your best interest to establish separate residences as soon as possible.

Resolving the issue of who should stay in the home or if it would be better to sell it is just one challenge of your divorce case. The experienced South Carolina Divorce attorneys at The Cate Law Firm, P.C. can advise you about the multitude of issues that may arise in that regard. Please contact us today at (864) 585-4226 or online to request a free, no-obligation consultation.

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