If you are or have been the victim of domestic violence by your spouse, then your safety should be your primary concern. If danger is imminent, leaving the home to protect yourself will not be used against you in subsequent divorce proceedings. If you choose to stay in your home, however, you may be eligible for a Temporary Protective Order, through which your spouse may be ordered to vacate the marital residence.
A house is often the largest asset that a divorcing couple has. Both spouses are legally entitled to enter and exit the home as they please, during separation and while a divorce is pending, unless and until a court rules otherwise at a temporary or final hearing.
If the house was purchased or paid for during the marriage, it is considered marital property in Georgia, and is subject to equitable division by a divorce court. Moving out of the marital home will not affect your claim to an equitable portion of the home.
There are also financial concerns to consider before making your decision to stay or move out – it costs more to run two households than one. If you move out and your spouse remains in the home, you should continue to contribute financially, carefully documenting any payments you make. If you stay in the home, you may want to consider if it is realistic for you to be able to continue to pay for the house, with or without support from your spouse after the divorce.
It is not recommended to have an agreement where one spouse owns the house and the other is responsible for paying the mortgage. This arrangement places an unreasonable emphasis on the continuing ability of the ex-spouses to get along. Circumstances are subject to rapid change, leading to an unacceptable degree of risk. The court may, however, affirm an agreement wherein one spouse lives in the house and the other spouse pays for a finite, definite period of time. After that time, the house will be sold and the proceeds divided.
Christine M. Scartz is an associate at Daniels & Taylor PC, a law firm in Georgia. Serving the Gwinnett and Walton County areas, the attorneys at Daniels & Taylor offer full-service, sensitive and sophisticated legal representation based on values of professionalism, integrity and ethics in the practice of family law. Visit her firm website and profile.