Source: "Should I Move Out?" by attorney Eric C. Nelson at www.divorcenet.com.
A question considered by most people contemplating divorce is whether they should move out of the marital home prior to or upon filing for divorce. Generally speaking, if child custody, parenting time, or possession of the home might be an issue in your divorce, I advise against moving out. Instead, try to stay put until the temporary order hearing, which is your first opportunity to legally compel your spouse to move out.
Although no legal precedent is created by your moving out of the marital residence, it will give your spouse's lawyer the opportunity to argue that:
1. Temporary custody of the child(ren)should be awarded to your spouse because he/she is already living in the house which has been the children's home. Forcing the children to move would only bring more disruption to their lives.
2. Temporary possession of the home should be awarded to your spouse because he/she is already living there. Since you made the decision to move out, it makes more sense to leave everyone where they now are instead of requiring both spouses to make another move.
These same arguments can be made not only for purposes of the temporary order, but also regarding your permanent divorce decree. And while the arguments may not prevail in the end, they very likely will have some influence on the judge since one of his/her primary motivations is to preserve the status quo.
If you must move out of the home due to an abusive or otherwise insufferable situation for yourself or the children, take the following precautions.
First, if custody is an issue, try to move the children with you if this can be accomplished without too much disruption in their lives. If you can't move the children with you, try to spend as much time with them in your care as you are requesting in the divorce. Otherwise, the longer you acquiesce to a pattern of parenting time that is less than you desire, the more of an argument the other party will make of it against you. Often arguments like the following are heard:
"Your Honor, the Petitioner moved out four months ago, and since then he has only had the children every other weekend, by his own acquiescence. Now all of a sudden he wants custody (or more parenting time, as the case may be). This is clearly a disingenuous request which should be summarily denied. The schedule the parties have been following has worked well for the children, and for the sake of their sense of stability and continuity, it should continue."
After a period of time has passed, nobody will much care if the reason you only had every other weekend was because the other parent truly wouldn't "let" you have more time. Although that may very well be the case, and although you may have let your spouse control the situation in order to spare the children the trauma of parental conflict, in my experience the courts are more swayed by the pattern of contact rather than by these "excuses."
Second, when you move out, take with you all of the household goods, furnishings, and other items of personal property which you want to keep. And perform an inventory of the items you have taken. The old adage "possession is nine tenths of the law" is very applicable here. Litigating personal property issues is usually prohibitively expensive, because it normally costs more to litigate than the stuff is worth. So if you ever want to see it again, it is much simpler and easier to take it with you when you leave. However, don't get too greedy. If you empty the place out and leave your spouse and children to sleep and eat on a bare concrete floor, you will have become your own worst enemy. Your reprehensible behavior will give ammunition to your spouse's attorney that will likely cause you to end up in the judge's doghouse, a blunder from which you may never recover.
Warren Shiell is a Family Law Attorney in Los Angeles