The Hidden Ramifications of Moving out of the Marital Home
An issue which universally arises in the dissolution of a marriage is who will leave the marital home. The decision to move out has significant legal implications, but, because it often takes place long before the initiation of the divorce proceeding, it is invariably made without legal advice.
In most cases the decision to move out is driven by the best of intentions. A spouse often leaves the marital home in order to dampen the tension between the parties and minimize the fighting and arguments inherent in the disintegration of the marital relationship. No matter how honorable his or her intentions, however, the spouse moving from the marital home can unwittingly undermine his or her position in the divorce proceedings that will necessarily ensue.
Actions truly do speak louder than words in the “he-said-she-said” environment of family court. As such, a parent who decides to move out could be seen as tacitly admitting that the other parent is fit to have primary physical custody of the children. The longer the parent remains out of the home, the stronger this tacit admission can become.
In Clark County, the family court is also authorized to issue an ex parte restraining order (a restraining order granted without notice) providing exclusive possession of the marital home to the party staying behind. With issuance of such an order, the ousted party may find it difficult to regain access to the home even to visit the children or gather clothing and personal belongings.
One of the family court’s primary objectives at the beginning of a divorce proceeding is to “maintain the status quo” until the parties can reach settlement or prepare their respective cases for trial. A party who “temporarily” takes a room with a relative or friend, therefore, might have a trouble moving out of that room while the divorce proceedings are still pending.
Of course, there are times when the imperatives of moving out far exceed the perceived benefits of staying. In homes where there exists a threat of domestic violence, a spouse may be much better served by leaving the home and immediately seeking court involvement.
At any rate, parties considering divorce or legal separation need to know that the seemingly innocuous decision of whether to leave the marital home can have hidden ramifications. The decision is, therefore, best made with the advice of counsel.