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Specialty tag(s): Divorce for Men, Divorce for Women, Dividing the Marital Home, Pre-Divorce Guidance, Divorce

What Are My Rights if I Leave the Marital Home? Problems With Moving Out Before Divorce

Jonathan James | April 17, 2024

woman sitting on floor with moving boxes and a checklist

Divorce is an emotionally trying and often contentious process, and it can sometimes feel impossible to manage while you’re living in the same home as your soon-to-be ex-spouse. Remaining in the home throughout the divorce will likely be stressful and could lead to raised tempers. However, that does not mean that moving out is always the right option. Before leaving the marital home, it’s crucial to understand why moving out is the biggest mistake in a divorce in certain situations.

How Moving Out During a Divorce Affects Your Property Rights

If a home was purchased within the marriage, it is considered joint property within the marital estate and its value is subject to division in the event of a divorce. As long as your name is on the deed and the mortgage, your property rights are not at risk. Regardless of whether you or your partner moved out before the divorce, both parties retain their rights to the marital home. However, the court may take your choice to leave the home into consideration when deciding how to divide marital property.

The Lack of Accessibility That Often Comes With Moving Out of the Marital Home

Beyond the property itself, it’s important to consider what you may be giving up upon vacating the residence. Beyond the possession of valuable assets within the home, you may be losing easy access to important information and any children who reside in the home.

Consider how moving out during a divorce may affect your access to important paperwork, including vital records and financial information. This is especially true in contentious family law cases. Documents such as insurance policies, bank statements, and information about retirement accounts are vital for divorce proceedings, and moving out may make them harder to access. Some spouses have even gone as far as destroying or hiding important documents in an attempt to gain a more favorable outcome in the divorce. If you do move out, make sure that you either maintain control over these items or have digital copies of all important documents.

Can I Rent an Apartment Before My Divorce Is Final?

You can rent an apartment if you choose to move out of the marital home, even before filing for divorce, but carefully consider any residency requirements related to divorce filing and how moving out may impact your finances. In terms of residency, Texas law requires at least one spouse to have been a resident of the state for six months and a resident of the county where the divorce is filed for 90 days prior to filing for divorce in that county. Moving out of the marital home may not affect residency requirements but could impact jurisdiction and the county in which you can file for divorce and when or how long you have to wait to file as a result of those residency requirements.

The Financial Implications of Moving out of the Marital Home

When moving out of the marital home, the person vacating needs to consider the financial impact of renting a property. Finding a new place to live does not automatically absolve you of your obligations regarding household bills and payments. This is especially true if the spouse who vacates the home is the primary breadwinner. The court may order you to continue making payments on the house and paying for regular expenses like utilities, even if you no longer live there. This means that you will now be paying for two homes, which can impact your budget during the divorce process.

That additional expense may have trickle-down effects as you try to arrange overnight visitation with any children. If you cannot secure housing with adequate room to comfortably accommodate overnight visits, those overnights may not be granted. Without a mutually agreed-upon visitation schedule, the spouse who has moved out of the marital home might find their access to the children limited, potentially affecting long-term custody arrangements and child support obligations. If you spend less time with custody of your child, you may be ordered to pay child support. If this happens, you’ll now have an additional financial burden that could impact your ability to afford a new place to live that’s a good environment for your child. And that, in turn, could affect the final custody arrangement.

Can I Move Out With My Child Before Divorce?

If you are a parent and you’re considering moving out, unless you’re in imminent danger, you need to discuss any child-related matters with your spouse first. You should also request a temporary court order before moving out to help define the parenting schedule. Not having one can put you at a disadvantage when it’s time to finalize a child custody agreement during the divorce proceedings.

Should I Move Out Before the Divorce?

Everyone’s situation is different, so it’s important to consider your unique circumstances before deciding whether or not to move out and vacate the marital home. It may be in your best interest to stay in the marital home as long as possible, but in some situations, particularly ones involving domestic violence or abuse, that is not a viable option. A knowledgeable divorce attorney can help you decide what the right choice is for your circumstances and make sure that you and your rights are protected.

At Goranson Bain Ausley, our experienced attorneys strive to help you achieve the best possible outcome for your divorce or family law matter. Contact us today to schedule a legal consultation and discuss your options.

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About the Author

Jonathan James is a highly skilled litigator and negotiator in high-conflict legal situations and consistently receives praise from his former clients for his integrity, professionalism, and responsiveness. Jonathan is Board-Certified by the Texas Board of Legal Specialization in family law and is a member of the State Bar of Texas. Additionally, he is trained in Collaborative Divorce and has been named a Super Lawyers Rising Star, 2019-2022 and Best Lawyer 2020-2021 and 2023 by The Best Lawyers in America.  

For more information about the implications of leaving the marital home before divorce, please contact Jonathan James at 214-903-4801.

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