If you and your spouse have decided to divorce, your instinct might be to move. Maybe you want to avoid the arguing and bickering that contributed to the breakup of your marriage. If you were the one who initiated the divorce, you might want to alleviate your spouse’s discomfort of having you remain in the house. However, leaving your family home before your divorce is final may not be in your best interests.
Can a Spouse Force the Other to Leave the Family Home?
In a New Jersey divorce, neither spouse has the right to force the other to move out before the divorce is final. Once you are married, both spouses have equal rights to reside in the house until the marriage is dissolved.
What if One Party Is the Sole Owner?
Even if the family home is owned by one party and is not considered marital property, the owner cannot force the other to leave.
Are There Any Exceptions?
There are some exceptions. Under New Jersey’s Prevention of Domestic Violence Act, a judge can issue a restraining order to bar an abusive spouse from the home.
Also, the family court can grant a request to force one of them to move out if it decides that it would be in the best interests of any children involved. In order for this to occur, however, a full hearing would be necessary and the spouse requesting the order would have to provide the court with clear evidence that the move would benefit the children.
There are several advantages to staying in the family home if you and your spouse can co-exist peacefully while your divorce is in progress.
Custody of Minor Children
One of the most important reasons not to leave is that the court might give preference to the parent who stays in the home with the children when it makes child custody decisions.
If your goal is to be awarded primary custody or 50-50 joint custody of your children, then you should think twice before moving out of the house. By remaining in the house, you will be in a better position to show that you continued to interact with the children as much as possible. If you leave and your spouse remains in the home with your children, then the court might conclude that this is an arrangement that has been working well.
It might also be a problem if you move to a residence that is not suitable for raising your children. Even though you might think of it as temporary, the judge who must decide who gets custody might not take that into consideration.
Access to Belongings
Although your spouse cannot force you to move, if you do leave, there is a chance you will not be allowed to return. Your spouse may ask the court for permission to change the locks. If that occurs, you might not have access to financial information and other important documents or even to any belongings you left behind.
Unless you can arrange to live temporarily with friends or relatives while your divorce proceeds, you may have the financial burden of paying for two residences.
Can You Move Out and Take Your Child?
If you are getting divorced and you are not comfortable living with your soon-to-be ex, certain conditions would have to be met before you would be allowed to move out and take your child with you.
One way is to have your spouse, the child’s parent, sign an agreement consenting to the move.
If your spouse is not agreeable, then you would have to obtain a court order for temporary physical custody of your child in order to move out of the house with your child.
Why Move Out?
Divorce is stressful for children under the best of circumstances, but hearing their parents argue can make it worse. If a couple cannot live in the same home without fighting and bickering, then it might be a good idea for one spouse to move out of the family home. In most cases, the children would remain in the house with the one who stays so as not to disrupt their routines more than is necessary.
Consult a New Jersey Divorce Lawyer
The decisions you make now can impact your life and the lives of your children for years to come. If you and your spouse can come to terms on matters such as where each will live, all the better.
In any case, it is wise to consult an experienced family law attorney who is familiar New Jersey divorce laws and who can help you understand how those laws will affect your particular situation.
This article is not meant to provide legal or financial advice.
Contact the experienced New Jersey divorce and family law attorneys at Aretsky Law Group, P.C. They can answer your questions about divorce, child custody, and other important issues. For an initial consultation, call us 24/7 at 800-537-4154.