I have heard time and time again that clients (or their spouses) refuse to leave the marital home because they do not want to be accused of abandonment; either of the real property or of the children. Rest assured none of the Judges think it is a good idea to reside with your spouse while you are going through the stressful process of a divorce.
Abandonment of property during a divorce (or dissolution) is not a legal allegation. If you leave the home, stay in it, have your name on the mortgage/promissory note or not, or have your name on the title or not, if it is purchased during the marriage it IS marital. If you move out of the house to have a place of your own during a divorce, they property is still part of the marital estate and will be part of the equitable distribution required for the Final Judgment. You will not get more or less just because you leave to try to salvage your sanity. If you move out and you were the person who primarily paid for the house, you still need to pay, it is still a marital asset that you need to maintain, but you can leave, and you will not lose your rights to that property. Do not put your mental health or physical health at risk by staying in the marital home with your spouse to preserve your rights to that property, it is simply just not necessary.
The more important issue is leaving the marital home when there are children involved. NO, if you leave you will not be considered to have abandoned your children. You are permitted to move out and still maintain a relationship and frequent contact with your children. Is this always easy? No. Sometimes people going through a break-up make poor decisions and think it is ok to keep a parent away from the children. The court will assist you, with the help of your attorney, to have contact with your children. You will not be penalized for moving out. That will not, in itself be a factor against you having a reasonable time-sharing (visitation) schedule with your children. There are factors that the court will consider in making the determination as to what a reasonable time-sharing plan is, and moving out of the house, is NOT a factor listed in the statute.
For more information on your legal rights when going through a divorce or a paternity action and what actions you may need to take to preserve your rights, contact the law office of Schwam-Wilcox & Associates. Our experienced attorneys can assist you with navigating through a situation that can leave you emotionally drained and full of questions if you do not have the right attorney for you.
By Camy B. Schwam-Wilcox
Dissolution, Divorce, Abandonment of Property, Abandonment of Children, time-sharing
