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When to move out of the marital home during a divorce

For a recently separated couple, the question of whether or not someone will keep the marital home can be as difficult a decision as any other during a divorce. Yet, before that decision happens, most divorcing couples will need to ask themselves a different question in the interim -- who will stay in the home during the divorce proceedings themselves? The answer to this question has more legal implications than what many might think, particularly in regard to child custody.

When considering who should remain in the marital home, whether both individuals should stay or if one should leave, often comes down to considerations of money and child custody. From a purely financial standpoint, there are some reasons not to move, but they do not related to an individual's stake in the share of the property. The financial downsides often result from the added cost of an additional residency for one spouse in addition to the residency costs for the home. Leaving the marital home does not, however, lessen one individual's ability to claim a share of shared property.

However, when considering child custody, there may be some reasons to continue to cohabitate with a soon to be ex-spouse, however unfavorable the situation may be. Should one spouse move out of a home without a prior agreement with the other regarding child custody agreements, it can put them at a disadvantage in child custody battles. This is because "abandonment" may be used against a spouse who moves out as evidence of disinterest in the child's welfare.

Furthermore, if a child's primary residence is at a marital home, the spouse who lives in it may have an upper-hand for custody because their residency is viewed as the default.

When attempting to decide whether to stay in a marital home during a divorce proceeding, it can be helpful to consider these facts and others before a final decision is made.

Source: Forbes, "Should you move out of the marital home? Learn from divorce attorneys, not the tabloids," Jeff Landers, June 11, 2013

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