"If I move out of the family home, do I lose my rights to it?"

The question raises two different issues regarding the effect of vacating the marital residence before a divorce. The first aspect involves the parties’ ownership interest in the residence as an asset of the community estate. Vacating the residence does not change the ownership interest in the asset (or the obligation on the debt). If the residence was purchased during the marriage using community property funds, it will remain a community property asset, subject to the division by the judge.

The second issue raised is who has the right to possess the residence while the divorce is pending. As a general rule, a party may not be forcibly excluded from the residence without the opportunity to have a hearing. The exception to this rule is when there has been domestic violence and the court grants an emergency order regarding possession of the residence.

Voluntarily leaving the residence may affect the party’s credibility in requesting later possession of the residence. Many factors are weighed by a court in determining who should possess a residence while a divorce is pending. These factors include: each party’s financial ability to maintain the residence, the best interest of the children in remaining in the residence, the party most likely to receive the residence in the final division of property, or any separate property interest in the residence by either party.

Michelle May O'Neil, president of O'Neil Attorneys and a Certified Family Law Specialist by the Texas Board of Legal Specialization, is nationally recognized as a leader in family law. She focuses on child-custody disputes, complex marital-property litigation, and family-law appeals. May also acts as a mediator for other attorneys in resolving family-law disputes.

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