It may happen in the heat of an argument, or after months of growing apart and talking about separation and divorce: your spouse asks you to leave the home you share (or tells you to). Whether the request comes as a shock, or is something you’d been dreading, you are probably wondering whether you have to leave the marital home, and what will happen if you do. In this blog post, we’ll talk about what you have to do when your spouse asks you to leave, what you can do, and what could happen next based on the choice you make about whether to leave. And if you are the spouse who wants your partner to move out, we’ll discuss what you can do about it.
Can You Evict Your Spouse?
Because you are married, both you and your spouse have the legal right to live in your marital residence, no matter whose name is on the deed or lease, and neither of you can evict the other. That should provide some comfort if your spouse has told you to get out, but you don’t want to leave your home. You do not have to leave unless and until a court tells you to do so.
That said, there’s a difference between having a right to live somewhere, and having it feel like home. If your spouse wants you out, he or she could make it very unpleasant for you to be there. You may reach the point where living in the marital home is not worth the daily aggravation of dealing with your spouse, a negative attitude, and bad vibes. You may wonder if it would be better to just move out after all. But what will happen if you do? Are you abandoning the home and your property rights?
Contrary to what many people believe, you are not abandoning the marital home or giving up your property rights by moving out. You still are entitled to one-half of the marital equity. You are still entitled to a fair division of household goods, furniture, and furnishings. However, that doesn’t mean that moving out might not have negative consequences for you, especially if you have minor children who live in the home.
Moving Out of the Marital Home Before or During Divorce
Ohio courts do not consider moving out of the marital home desertion of your spouse or children. Even so, moving out can have an impact on issues like child support and parenting rights and responsibilities (child custody). When you and your spouse live in the same house, courts do not address the issue of parenting or order you to pay support. Even if one of you is living in the basement or a separate bedroom, you are, for all practical purposes, still living together. Of course, in a divorce situation, a court can order one spouse to vacate the residence.
Once one of you moves out, all of that changes. Spending time with the kids is no longer effortless or automatic; there needs to be a parenting time schedule and the children must be transported between your homes. Your spouse may now ask the court for child support and spousal support. The court may issue temporary orders dictating how these issues will be handled pending a final divorce decree.
Although moving out does not legally deprive you of your right to see your children, it can affect that right as a practical matter. Courts value stability for children, so in some cases, orders for temporary allocation of parental rights and responsibilities (custody) provide that the children remain with the parent who is staying in the marital home during the divorce a greater amount of time than the away parent, such as during the school week with overnights and weekend time to the away parent. If a schedule is working between the time the parents separate and the time of the temporary hearing, there would be no reason to change that schedule. You would have parenting time, but it might not be as frequent as you would like. Other times, courts will allocate parenting time strictly equally, but it would rarely be every day contact. The longer that arrangement continues without incident, the less likely the court will disrupt the children’s lives by changing parenting schedules in the final divorce decree. Is that fair to you as the parent who moves out? Maybe not, but the court is less concerned with fairness between adults than doing what is in the best interests of the children. And, of course, if your spouse has residential responsibility for the children, the court will likely also award child support.
So, what are you to do if you need to move out of the marital home? First, take all the personal property, mementos and memorabilia that you care about, such as grandma’s thimble or your high school diploma or even furniture, because you may never see it again. Second, do try to reach an agreement regarding parenting time schedules working with your work schedule and that of your spouse and the children’s schedules. Third, until there are temporary orders determining who must pay what expense, try to reach an agreement about how shared expenses will be covered: who pays the rent or mortgage, utilities, car payment, vehicle insurance, cell phone bills, daycare expenses, credit card bills? If you feel unable to reach agreement on your own, you might be able to use family mediation to decide how parenting time and expenses will be managed while your divorce is pending. If your spouse is unwilling to even try to negotiate, contact an experienced divorce attorney as soon as possible.
If You Need Your Spouse to Move Out
What if you are the person who wants your spouse to move out of the marital home? As discussed above, you cannot just serve your spouse an eviction notice. The best approach to take depends on the reason you are trying to get your spouse to move out of the house.
If space and emotions permit, it may be appropriate for both of you in the home with your own living spaces. Doing so allows you to continue co-parenting with a minimum of disruption to your children, as well as conserving financial resources for your life after divorce.
Of course, living under the same roof during a divorce simply won’t work for some couples. And if your spouse is abusive, it is especially important that someone leave the home during your divorce. You may be able to get a protective order against your spouse that would give you exclusive possession of the marital home. Speak to a knowledgeable family law attorney regarding your options if domestic violence is an issue in your divorce.
If you have further questions about moving out of the house, or getting your spouse to move out, during a divorce, contact Melissa Graham-Hurd & Associates to schedule a consultation.