If divorce is in your future, it may make sense to move out, but doing so can have unforeseen implications in your court case. There are legal, financial, and custodial consequences of moving out.
Talk to a family law expert before making any major decisions that can impact your divorce. An attorney can explain what the courts may infer from your choices and what the law says.
Understand Your Legal Rights to Stay or Go
If your name is on the lease or mortgage, you have the same right as your spouse to remain in the home. It can be uncomfortable, but your spouse cannot force you out if you are separated or divorcing. In many cases, a spouse who is not on the lease or mortgage can also stay because they have earned the rights of a tenant. However, moving out can impact things like child custody, which is decided in a divorce.
Moving Out is Not Abandonment
Leaving the marital home before filing for divorce is not legal abandonment and does not waive your rights to be there. It does not break any law to move out, but it is a factor in family court when considering parenting rights.
Arizona is a no-fault divorce state, so neither spouse needs to prove the other caused the divorce. Most divorces are granted on the basis of being “irretrievably broken.”
Community Property Protections
Arizona is a community property state, which means your ownership or financial share of the family home is not surrendered if you leave it. The spouse who remains in the home can argue that their role as sole resident, caretaker, and custodial parent gives them additional rights. Courts might consider financial capability, the best interest of the children, and individual contributions when deciding who retains the home.
The Financial Risks of Moving Out
Financial obligations do not end when you move out. It’s unlikely that moving out of the marital home ends your responsibility for continuing to pay the mortgage, utilities, and other property related expenses while a divorce is pending. A judge may award temporary orders for paying household expenses until divorce orders are finalized.
There can be other financial repercussions after moving out, such as:
- The spouse living in the marital home can seek reimbursement from the one who moves out for mortgage payments
- The spouse who moves out can seek rent from the spouse who remains in the home
Understanding these possibilities can help you and your attorney plan proactively.
Moving Out: the Effect on Custody
For parents, custody is a big consideration when deciding whether to move out, as it impacts time spent with your children. Judges are required to weigh many factors in awarding custody. Because courts focus on the best interests of the child, the parent who remains in the home is often favored for custody. Keeping a child in stable, familiar settings and on a consistent schedule are seen as the best environment for their development.
When Moving Out Makes Sense
The emotional and psychological strain of divorce makes living under the same roof very difficult. If domestic violence is a concern, living separately can be the best option. An Order of Protection from the courts can require the abusive spouse to move out. If neither spouse wants to leave, either of them can file for temporary orders, asking the court to give them exclusive use of the marital home. This is usually followed by a hearing to determine the merits of the request.
If You Move: Protect Yourself
If you move out, take any personal or sentimental items that belong to you, as they can be difficult to recover after a divorce. Likewise, make an inventory of valuable items to ensure a fair distribution when property is divided. Keep records of all financial contributions made toward the home after you leave. These records can be pivotal in future court hearings.
Get Unbiased Advice from a Professional
Deciding whether to move out should not be made emotionally or impulsively. Preserve your rights by getting solid, unbiased advice on your options from experienced attorneys at Webster Family Law before you act. Call for a consultation today.