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Should I Stay or Should I Go? Seven Things to Consider Before Moving Out of the Family Residence

The most volatile time during a divorce is usually right after the Petition for Dissolution of Marriage has been filed. It is at this moment when feelings of fear of the future surface, accusations fly, verbal attacks mount, and before you know it people end up saying and doing things they later regret. Common sense tells us the best solution during this difficult time is for one of the parties to move out of the family home. However, the decision to be the person who moves out is often a difficult one, especially when a party is unaware of the rights and potential consequences associated with vacating the residence.

The following seven facts should be helpful to anyone who is struggling with this decision:

  1. Under the right set of circumstances the court may grant one of the party’s exclusive use of the family residence. Proof of domestic violence and/or a high degree of volatility within the household are facts that normally will cause the court to grant a "kick out" order. On the other hand, if one’s safety is at risk it may be smarter to move out.
  1. In many cases the mortgage on a house is lower than the cost of renting a suitable apartment or house. Thus, it may be advantageous for the spouse who has less income to remain in the house until it is sold. On the other hand, the person who continues to live in the family residence may have to reimburse the other party (see point # 3).
  1. The party who moves out of the family residence may be entitled to reimbursement for the other parties’ exclusive use of the home. Likewise, if the person who moved out of the home continues to pay the mortgage, he or she may be entitled to reimbursement credits.
  1. In California, the family residence does not cease to be a community asset just because one of the party's moved out of the residence. The party who moves out of the home will continue to own one-half of the community interest in the home, in spite of moving out, and will share in the appreciation or depreciation of the home’s value.
  1. In some instances the other party will agree to pay a lump sum amount of money to the moving party so that he or she can set up a new residence. In addition, the party moving out will often be able to collect child and spousal support that may not be available when the parties are still living together.
  1. There may also be emotional benefits to moving out of the home. For example, many people describe a sense of relief after moving out of the family residence and a feeling that they are no longer stuck in the past.
  1. Parties often have legitimate concerns that the other party will hide, steal, or destroy their personal property after they leave. Although there is no guarantee these things won’t happen, by taking certain precautions a party can minimize the likelihood of being a victim to such behavior. For example, prior to moving out, a party should think about inventorying and photographing the personal property left behind.

In summary, not everyone will draw the same conclusion as to staying or leaving the family residence during the divorce. However, as the above facts show, there are often as many if not more good reasons to be the person who leaves the family home. As the old saying goes, “when you can’t stand the heat, get out of the kitchen!”

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