It depends. If you have children and you move out of the house, it will be very difficult for you to obtain primary physical custody of the children unless you can prove gross incompetence in parenting in the spouse that remains. Stability is the most important aspect of a child’s life and it is particularly important during the upheaval a divorce causes in the family. Therefore, courts will go to every extent possible to keep the children in the primary home. If you move out of the home, the best you would be able to obtain from the court is 50/50 custody.
Also, you should consider the fact that in moving out of the home, you need to maintain the expense of a second home. You are also technically responsible for the expenses on the primary home. Therefore, your expenses could double. If you don’t have an extra amount of savings every paycheck, meaning that if you live from paycheck to paycheck, it will be literally impossible to maintain two homes during the divorce process.
However, if you have no children and if you decide to remain in the home with the other spouse leaving, the courts can look at the fair rental value of the family residence as opposed to what you are actually paying. If the payments in maintaining the home is $1,000 per month yet the fair rental value of the home is $2,000 per month, you could owe one-half of the difference to the spouse who left, meaning $500 per month. Some divorces take years to adjudicate. Therefore, when you get to trial, you could owe the “out spouse” a significant amount of money in the rent that you owe back to the community for living in the community residence and paying expenses that are under the market rent. This is known as a “Watts Credit” under the case of In Re The Marriage of Watts.
Therefore, you need legal counseling to advise you of your particular situation BEFORE you make a decision to leave or stay in the family residence.
John Gilligan is a founding partner at the family law firm offices of Brandmeyer Gilligan Dockstader & Davidson, LLP in Long Beach, CA. John has over 30 years of experience handling family law, probate litigation, and estate planning matters. He can be reached directly at 562-431-2000.