Family Matters.
When It Really Matters.

Does One of Us Have to Move Out in a Divorce

On Behalf of | Aug 3, 2019 | Divorce

Does one of us have to move out in a divorce here in North County San Diego?  What impact will moving out have upon the party who leaves the home during a divorce?

It used to be almost necessary for one party to move out of the family home during the process of a divorce.  It was to help establish the “Date of Separation” or DOS.  The DOS is an important date as it signifies the end of the “community property” interest in each spouse’s earnings.  From the DOS each spouse can keep their own earnings as “separate property.”

The short answer to “Does one of us have to move out in a divorce in Carlsbad?” is simply “NO.”  In fact, moving out can actually have a negative impact on some of your most important goals such as shared child custody and parenting time.  Wait, at least, until the divorce is filed and temporary child custody and parenting time orders have been issued.

When one of the parents moves out of the family home it sends more than a subtle message to the Judge.  Moving out was more important than your child(ren).  In addition, possession of the children (within the family home) provides complete control over access to them for visits and other activities.  The parent who remains with them in the house could limit your time with the child(ren) and establish a new “status quo” going into the divorce process.

Further, the parent who remains can attempt to make a strong legal argument they have put the children first and have their best interests in mind.  A request for primary legal and physical custody (or at least a majority of the parenting time) may carry additional weight.

Protect all of your rights.  We understand the bitterness and uncomfortable nature of remaining in the same home once the decision to divorce has been established.  Establish the DOS and then seek to protect your interests and goals for the divorce.  The best proof of a DOS is the service of the divorce itself.  If you are not ready to file, send your former spouse a certified letter (best) or an e-mail which clearly states your intention to seek a divorce and life separately.

Protecting your interests requires accurate, sound legal counsel.  We invite you to review the strong recommendations of our clients and the legal industry and contact Burke & Domercq or call 760-389-3927 to learn more or schedule an appointment.  It is important to make all the right steps in your divorce.  We will help you to do so.