How moving out of the home can affect a Florida divorce

When your broken marriage no longer offers any happiness, it may be time to get a divorce. But does that mean you should also pack up and move out?

The question is simple, but the answer is not. Like many of the decisions people make during divorce, the decision to stay home or move out comes with a host of hidden consequences. Even if you can barely stand the sight of your partner, you want to learn how moving could affect your divorce before you pack up and go.

Abandonment is not a ground for divorce, but it is a notable event

As The Florida Bar notes, the state recognizes only two legal grounds for divorce:

  • When the marriage is "irretrievably broken"
  • One party's mental incapacity

Neither of these grounds place one or the other spouse "at fault." This means you shouldn't have to defend yourself from accusations or prove that your spouse was the one creating the problems. It also means the courts shouldn't favor the "innocent" partner in the custody and property awards. But while your decision to leave the house wouldn't affect the grounds of the divorce, it could affect your custody and property awards all the same.

How is this the case? When the court decides how to award custody and divide marital properties, it considers a long list of factors. Those include current use and the stability or disruption of people's lives.

  • If you move out of the house while the children stay in it with your spouse, you may be weakening your custody claim. The court may see your spouse as the primary caretaker and use that as an established fact in the custody award.
  • If you move out of the house, you may also weaken your claim to the home. Florida law instructs the court to consider the "desirability of retaining the marital home as a residence," and they may view the house as your spouse's residence-not yours-if you've already left.

The circumstances of your divorce are unique

In some circumstances, choosing to leave the house early can have negative consequences, but there are also times when moving out may be in your best interest. These include:

  • Getting out of an abusive situation
  • Following the terms of a restraining order

Safety concerns should always be given high priority, and you may even need to get out of the home to protect your psychological or emotional health. However, it's important to note that there are different ways to leave. You might want to get out without packing and removing all your belongings from the house.

Ask yourself these questions before you act

It takes a solid strategy and lots of hard work to survive your divorce. Making it out in good health and finances means thinking through your decisions. You want to consider every angle before you move, including:

Could you be accused of desertion or abandonment? It is a crime to leave your dependents without the means to care for themselves. Make sure your departure won't be viewed as a criminal act.

  • Are you forfeiting your property rights? By leaving the house or any of your belongings within the house, are you showing that your spouse has the stronger claim?
  • How will the move affect your custody claim? If you establish your spouse as the primary caretaker, it may be harder to win shared parental responsibilities and time-sharing. If you move, how will you demonstrate your commitment to your children?
  • Can you afford to move? Many people struggle with their payments for one home. Could you afford to add rent or a second mortgage to your payments for the marital home?

These are big questions with big consequences, and you want to discuss them with an experienced family law attorney before you pack your bags. Few of us think clearly when we're angry, sad or stressed. It can help to review your choices with someone who can address them in the context of your goals and the ways they can shape your future.

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