By Attorney Howard Iken: This is the final installment of our two-part blog post discussing the advantages and disadvantages of moving out of the family home during a divorce. Because this is an issue that people ask about in the majority of divorces, we have provided an analysis of the issues that must be carefully considered when deciding on whether to move out of the family residence. If you have not yet reviewed Part I of this blog, you may wish to do so before reading further.
Impact on Parenting Plans
Florida family law judges develop parenting timeshare arrangements and custody orders based on the “best interest of the child” standard. While there are many factors considered when applying this legal standard, most judges put a significant value on maintaining a stable home living environment because kids need to cope with the significant changes inherent in the divorce process. If you are seeking to be the parent with the greater share of parenting time, you may face an uphill battle if you have already moved out of the residence. The judge may be inclined to allow the kids to remain in the family home with the other parent.
Effect in Property Division
If you wish to keep the family home, you generally should not move out and leave the other parent in sole possession of the home. While there is nothing that prevents a spouse who has moved out from negotiating a property settlement that includes the family residence, the house will generally be granted to the spouse who continues to live there if the parties cannot agree on who should keep the home. There may be practical considerations about the ability of a spouse to afford the mortgage payments or to buy out the other party, but the spouse who remains in the home will have an advantage if these financial considerations do not pose a problem.
Risk of False Accusations of Domestic Violence
Although spousal abuse is an important issues, sometimes a spouse will make false allegations of family violence to gain a strategic advantage in a Florida divorce. Restraining orders based on domestic violence allegations can be a powerful weapon that may be used to damage your parent-child relationship, employment, reputation and more. If you have concerns about the prospect of false allegations of spousal abuse, this is the type of issue that may justify moving out after consulting with a Florida divorce lawyer.
Losing Access to Your Children
If you leave the family home without a parenting plan reached by agreement or a judge’s order, you will be left to the mercy of your spouse in term of access to your kids. Sometimes the spouse who remains in the home in this situation will make it difficult for the other parent to see his or her kids. The result is that the parent in the family home will appear to be acting as the de facto caretaker for the children which can net a long-term advantage in a contested custody dispute. If a parent feels compelled to move out of the family residence, the parent should promptly seek temporary custody and parenting plan orders.
Access to Financial Documents & Business Records
Some parties leave the family home on a moment’s notice without much opportunity to gather or copy important financial documents and records like bank statements, tax returns, W-2s, retirement account statements, credit card bills, mortgage statements, profit and loss statements and other financial documentation. This information is important when addressing the division of assets and debts, spousal support and child support. While both spouses have an obligation to provide disclosure of financial records and information during a divorce, the process of resolving financial issues is easier if you have access to these documents. The complexity and cost of a divorce can increase if you have an uncooperative spouse and no access to these records. If you must leave the home, you should consider gathering as much of this information as possible prior to surrendering possession of the family home to your spouse.
This list of issues that need to be considered when weighing the advantages and disadvantages of moving out of the family home should make it apparent that such a choice cannot be taken lightly. Anyone contemplating a decision with this kind of impact on property division, custody orders and support obligation should obtain legal counsel regarding the specific issues raised by the individual’s unique circumstances.