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Should You Move Out of the Marital Home During Your Divorce?
Many divorcing couples ask themselves this question. If you are in a dangerous situation, then of course, nothing matters but your safety and you should leave immediately. There are shelters available in most cities if you can't get help from relatives. Nothing is worth compromising your safety. We'll explore what to do and what to take with you if you feel you must leave no matter what, either for safety, or other, reasons.
Barring any security issues, you might want to figure out a way to stay in the home until the divorce has been finalized, especially if you have minor children and wish to obtain either full or shared physical custody.
A past client, whom we'll call Diane, insisted that her husband move out of the family home once they had decided to divorce. She had asked him to move out because she found it challenging to handle the stress of the marriage, and she was concerned about how the fighting and tension between her and her spouse was affecting their children. Her husband went to live three blocks away at a friend's home for the duration of the divorce. Had we been representing him instead of her, we'd have cautioned him against it and told him to find a way to deal with the stress and fighting. There is no room to go into counseling about that in this article, but there are resources available for it online.
It took eighteen months to finalize Diane's divorce because of numerous motions filed by her husband's attorney, requests made for everything under the sun, what we call being “papered half to death” by the other side, and a packed court calendar.
Though Diane's husband remained involved in their three children's lives on a regular basis, they never spent the night with him because there was no room for them at the friend's house. The children spent every night with Mom, so we were able to convince the judge that Mom had essentially had full physical custody for the previous 18 months and it was best for the children to keep living with Mom full time. Because of this, the judge was naturally reluctant to uproot the children from their known home several nights each week and he granted full physical custody to our client.
The children's father was cautioned by the judge to get his own place, one with an adequate sleeping space for each child, and have the children spend the night when they were with him on weekends. The father was further told that he could petition the court again for a shared custody arrangement in six months to a year. Essentially, the father lost out on his desired shared custody arrangement because he was too quick to leave the marital home and he never kept the children overnight.
So, unless you are in immediate danger, it might be best for you to bite the bullet and stay put. If you do decide to leave anyway, even knowing this, be sure to take important financial documents and records with you.
Taking important documents with you is even more crucial if you are forced to leave the house by the court or the police. Should that occur, it is unlikely that you'll be allowed back into the home until after a court hearing, if at all. Be sure to at least take the following documents:
Take photos of any high-value artwork, collections of value, such as baseball cards, memorabilia, jewelry you can't take with you, even high-value clothing or accessories such as high-end handbags (Louis Vuitton, etc.)
Find a place to live as close to the marital home as possible and close to your children's school. When the judge decides on physical custody, you are a lot more likely to win shared physical custody if the children's school and extra-curricular activities' schedules will not be disrupted by going from one home to the other. The judge will also want to know that the standard of living for the children in your new home is similar to what they have been accustomed to in the marital home. Arrange for your children to stay with you overnight on a regular basis. Ideally, you should follow the parenting schedule you wish for the judge to rule upon when it comes to decision time.
It's sometimes a tough decision to make, but if there is any way possible, it's probably best to stay in the marital home until everything has been ruled upon by the judge.
In determining child custody, the court considers the wishes of the child, if the child is old enough and capable of making an intelligent choice, and any history of domestic violence in either parent or any other person seeking custody.
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