Who Should Move Out of the Family Residence?

WHO SHOULD MOVE OUT OF THE FAMILY RESIDENCE?

A Guide for Divorcing Couples

Both Parties Have a Right to Remain

If you and your spouse purchased a family home together and/or if both of

your names are on the deed to the home, then you both have a legal right to the home and you have a legal right to remain in the house while a divorce is pending and until an agreement is

reached as to who should get the house in the divorce

Moving Out Does Not Jeopardize Your Claim on the Home

While both spouses have a right to stay in the home during divorce

proceedings, in most cases, you may not wish to continue living together upon filing for separation and while

your divorce is pending

One of the two spouses can move out of the shared family residence

without jeopardizing his or her legal claim on the home

Can You Agree on Who Will Leave the Home?

The best case scenario for all parties involved is for one of the two spouses to voluntarily agree to leave the house

If you agree to leave, you do not have to worry that you are giving up the right

to fight for the home

You should, however, speak to an attorney before deciding whether to leave the house or not in order to

ensure that you are protecting your legal interests

Considerations for Who Should Move Out

If you are deciding together who should move out of the family home,

there are a number of important considerations to think about

If one spouse is the primary caregiver to children, that spouse and children should usually remain in the home to

maintain stability for the kids

If only one of the two spouses can afford to keep the home after the

divorce, it may make sense for that spouse to stay since he or she is most likely to be the one to continue living in

the home unless it is sold

Protect Yourself from Abuse

In any situation when deciding who should continue to live in the home, the first and most important thing to

do is to protect yourself from an abusive situation

If you do not feel safe in the home, you should do whatever it

takes to make sure you are not in a dangerous environment

This may mean leaving the home to go to a shelter or other safe location, or it may mean getting a protective order to force your spouse to leave

the home

Protect Your Children From Abuse and Conflict

Protecting your children from abuse is also vitally important in a divorce

situation

If your spouse is being abusive to the children, you should remove your children from that situation right away to avoid risk of injury

You can typically get a restraining order and a court order forcing your spouse to leave to prevent your spouse from remaining in the home and continuing

to abuse your children

A lawyer should be consulted right away in these situations

File a Request for Order

If you wish to force your spouse to leave the family home prior to a final

decision on who gets to keep the house in divorce, you will need to file a request for order with the court

You’ll need to convince the court that it is reasonable, just and fair to require your spouse to leave the home pending a final decision on who gets this asset in the divorce

An Attorney Can Help

Your attorney can explain your legal rights regarding your family home and help you to make an informed choice

about whether you should stay or leave

Your attorney can also represent your position in court, whether you are

fighting to have your spouse removed from the home or responding to a

petition that your spouse has made to the court to get you to leave

We invite you to contact us at (925) 314-2320 to schedule a consultation

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