Jay A. Frank a matrimonial practitioner in Chicago, answers:
The short answer is “No,” you should not move out of the house while the divorce case is pending. While you don’t give up any legal rights to the house or abandon the house by moving out, there are legal and strategic reasons why you should stay in the house.
From a legal point of view, remaining in the home gives you two advantages. First, your continued occupancy of the home will give the judge a basis for awarding the home to you at the end of the case. In deciding issues such as this, many times judges look for an answer which will promote stability and keep things as they are. Awarding the house to you when you have continued to reside there provides this stability. On the other hand, it may be difficult to get back in the house and to have it as your property at the end of the case if you have been out. This is especially the case if you have been out for some time.
There is another legal reason why remaining in the house makes good sense. In many cases, the children will stay in the house during the time the case is pending. A parent who is also living in the house is obviously spending the maximum amount of time with the children. The parent who is living outside the home will not be spending as much time with the children and will only have a set visitation schedule. Being with the children is an important factor that is considered by judges when deciding issues regarding custody and parenting time. This is because time with the children keeps you close to them and involved with all of their activities. Therefore, the parent in the home with the children will generally have an advantage over the parent who is not in the home.
From a strategic point of view, for one reason or another, a spouse seems to lose leverage in the case when moving out of the home. The disadvantage comes even greater if the other spouse remains in the home with the children. The spouse who has moved is literally “on the outside looking in.” That simply is not a good situation to be in during a contested divorce.
Staying in the home keeps you in touch with important aspects of the case. You are able to:
- be with the children and participate in their lives on a daily basis;
- observe the way in which your spouse interacts with the children and, if
- necessary, maintain a log detailing problems or a lack of parenting skills;
- review and copy credit card statements, bank statements and other financial reports that come to the house;
- keep track of your spouse’s comings and goings and maintain a log;
- have family, friends, and neighbors come over and provide support.
All in all, there are many important benefits to remaining in the home.
Remember, you have a right to stay even if your spouse wants you out and even if it’s uncomfortable with the two of you in the same home. Many couples remain in the same home during the case — if possible, you can move into a separate bedroom.
The only way your spouse can get you out is if you misbehave (initiate physical violence, harass or bother your spouse, and the like). Don’t let your spouse bait you — walk away from confrontations. This approach will maximize the results in your case.
Jay A. Frank is a senior divorce practitioner with Aronberg Goldgehn Davis & Garmisa in Chicago. He has been selected as one of the top family-law attorneys in Illinois. With more than 35 years of experience, he focuses his practice on all aspects of Illinois family law. He can be reached at (312) 828-9600. View his Divorce Magazine profile.