Do I have to stay in the house until the divorce is final?

divorce stay in house

You’ve started divorce negotiations (or filed a Complaint), and you’ve started mapping out the next steps of your fresh start.  One of the most significant steps of “new normal” is deciding where you’re going to live and when to move. 

But how does this step impact the divorce process?  If you leave the house before the divorce is final, how will your decision impact how the courts see you, or how you will be able to negotiate your divorce settlement?

Leave if you want to

When evaluating your options, it’s important to note a few things about New Jersey divorce law.

New Jersey is a “no-fault” divorce state. This means moving out doesn’t imply “desertion” or “abandonment” legally, although that could change if combined with other behaviors or actions.  

Also, unlike other states, New Jersey doesn’t require a period of separation prior to filing for a no-fault divorce.

So, you can move out. However, whether you truly should move out or not depends on the specifics of your case. If you and your ex-spouse don’t have children, then custody isn’t on the table as a problem to be solved and both parties have an equal right to remain in the move up to – and after – the divorce. 

But don’t forget the children

It’s a different story if you have children.  

If you’re seeking primary residential custody, the courts strongly emphasize providing stability and continuity.  If you want to move out with the children, you’ll need an agreement about custody and parenting time from the other parent – or the court’s permission to take them – even if you’re their primary caretaker. 

Either way, before you move out, make sure you have a parenting time plan in place.

Keep in mind…

Even though things may be tense at home, you can’t make your spouse move out, especially if you both own the marital home (except in cases of domestic violence or where there is a clear danger to the children).  Even if one spouse owns the marital home outright, the owning spouse can’t force the non-owning spouse to leave.

If you move out, that doesn’t mean you’re off the hook financially.  Your children and spouse may be entitled to support, even though you don’t live there anymore.

Get ready, get set, go

New Jersey in an “equitable distribution” state. That means courts divvy up assets and liabilities fairly, but not necessarily equally. 

When it comes to the marital residence, divorcing couples have some eventual options: sell the marital residence, one spouse stays and buys out the other spouse’s interest, or one spouse stays and later sells with the spouses sharing the future sale proceeds.

Depending on your case, the court may order a particular course of action. For example, they may order you and your spouse to sell your home and divide the proceeds or they may award the home to one spouse, but require a “buy out” on behalf of the other. 

You likely have questions about how to deal with your marital home during your divorce.  It’s important to have legal counsel that knows the ins and outs of New Jersey divorce law. Keith Family Law is happy to discuss how to proceed with your case and find the best course of action for you and your family. 

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