The short answer is “No,” you should not move out of the house while the divorce case is pending.
Will Moving Out of the House Affect the Results of My Divorce?
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. If you do move out, it may be difficult to get back in the house and to have it awarded as your property at the end of the case. 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 out 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 problem 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.
Lastly, there are situations where the “in house spouse” becomes comfortable with the situation and has no desire to move the case along. Life remains basically the same for the “in house spouse” and, even better, the other spouse is not around to make things difficult. Cases tend to stagnate, to the advantage of the “in house spouse”.
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, living in separate bedrooms.
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 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. www.agdglaw.com