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Should You Stay in the Home While Your Divorce is Pending?

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You and your spouse have decided it is time to go your separate ways. Emotions are running high, and much of life may seem uncertain right now. Should you stay in your home once this monumental decision has been made? For one spouse, the answer used to be an emphatic no as New Jersey divorce laws required couples to live apart in order to be granted a divorce. However, under New Jersey Revised Statutes § 2A:34-2, living apart is not a prerequisite if there are other legal reasons for divorce.

You may feel like getting out of your home as soon as possible, which is understandable, but doing so could lead to severe consequences. Before acting on your feelings, it is best to speak with a compassionate New Jersey divorce attorney who can advise you as to what your course of action should be at this time. Leaving the marital home can have an impact on nearly every part of your family life going forward.

Parenting and Child Custody

If you have minor children in the marital home, your divorce lawyer in New Jersey will most likely recommend that you remain in the house during your pending divorce. Leaving could compromise future your child custody rights. If one spouse voluntarily moves out, this gives the remaining spouse de facto custody, which is physical possession of the children. By moving out, you convey to the family court that you believe your spouse is competent to care and provide for your children.

Looking for more Information? Download our FREE Guide “Leaving the Family Home”

In addition, it is unlikely that you will be able to take the children from the marital home since both parents have equal rights to the children. If you want to remove them, you will either need the express permission of your soon-to-be ex-spouse or an order from the court.

Possession of the Home

You may be wondering if you have to leave your marital home, especially if your spouse is bullying you or harassing you into it leaving. If your name is on the mortgage or the lease, you do not have to leave unless you are served with a legal order stating that you must. In fact, being removed from the home under a legal order will likely give you a better standing in court with your divorced than if you voluntarily leave.

If you voluntarily leave the home you own and live in with your spouse, your spouse could file a motion for temporary exclusive possession of the house. You will be barred from returning to the home during the pending divorce if the court grants this motion.

This works both ways, however. If you feel unsafe during the divorce proceedings, you can file a motion with the court to make your spouse leave and not return to the home during the pending divorce. This often happens in cases where one spouse can prove that the other spouse is abusive or makes the environment unsuitable for the children.

Do You Trust Your Spouse?

If you did not trust your spouse before you decide to divorce, you might not trust them in your home without you there once you decide to get divorced. If you move out, your home, along with your belongings is in their control. It is not unlikely for spouses to take out their frustrations on the other spouse’s things if the divorce is contentious. Your lack of presence in the home could cause you do not have a part in the real estate process, or it could provide your spouse with an opportunity to damage the house or delay its sale.

Consider the Finances

You must also consider your financial position before leaving your marital home. You might be hit with temporary orders that require you to pay spousal or child support. The court could also mandate that you contribute to the home mortgage payments or other household expenses based on what you paid for in the past. Renting an apartment or buying another home to live in will often require you to support two households on one income.

Do Not Leave Important Records Behind

If you do choose to leave the marital home, be careful not to leave behind essential records. While these records could possibly be obtained through the discovery process in your divorce, you do not want to risk having them disappear. You will want to gather financial records and other documentation that could be beneficial in your divorce or that you will need later as you rebuild your life. This could include:

  • Tax returns
  • Bank statements
  • Pay stubs
  • Medical records
  • Educational records

Alternative Options

Depending on the state of your relationship with your spouse, you might be able to explore some short-term alternative options to one of you merely moving out. One creative option some couples use is for one parent to live in the home at a time with the children for alternating periods of time. During their time to not be at the marital home, the other spouse could stay with friends or family nearby or rent an apartment if needed. This requires communication, trust, and flexibility, which some couples enduring a divorce may lack.

Another option for larger marital homes is to somehow divide the house into two parts or even just share the common areas as needed or schedule their use. This option will still require flexibility and communication, but it does not require a budget.

Hire a Skilled New Jersey Divorce Attorney

Before you move out of your marital home during a pending divorce, you will need to weigh the significant issues of your divorce carefully and your financial situation to determine if the benefits of leaving are better than what might happen if you stay. A divorce attorney in New Jersey can help guide you through this challenging time of life and help you decide if it is better for you to stay or go. Call Petrelli Previtera, LLC today at 866-465-5395, chat with a live agent, or schedule your consultation online.


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