Conflict between man and womanWhen you attempt to live under the same roof with your soon to be ex-spouse, the situation can be tense and uncomfortable. Although a growing number of divorcing couples are electing to reside together in the family home while their divorce is ongoing because of tough economic times, this does not mean that they are happy about the arrangement. At our New Mexico divorce law firm, clients frequently express the desire to move out of the family home to escape the animosity, stress and confrontation of living under the same roof during a pending divorce.

There are certainly circumstances where moving out is appropriate to prevent domestic violence incidents, bitter conflict in front of your children or false allegations of spousal abuse. While a spouse facing these types of serious issues may have little alternative than to move out of the family home, there are definite disadvantages to vacating the family home while your divorce is in process. We have provided an overview of some key reasons you might want to remain in the family home if you can:

Access to Your Kids:

If you move out of the family home without formal custody and visitation orders, you are essentially at the mercy of your spouse’s cooperation in obtaining access to your kids. Most parents motivated to move out of the marital home during a divorce are experiencing an acrimonious relationship with their spouse. If the relationship is bad when you are both in the home, this is not likely to change much after you move out. When parents are not communicating and cooperating well, parents may want to avoid making their ability to spend time with their kids dependent on the whim of the other spouse.

Impact of Lack of Parenting Time:

If your spouse refuses to allow you to spend reasonable time with your kids after you move out, the court may consider your lack of parenting time with your kids when fashioning custody and visitation orders. The process of justifying why you are not exercising more extensive parenting time may be a matter of “he said-she said” with your spouse alleging that you have not tried to visit rather than admitting to a lack of cooperation. If a parent does vacate the family home, the parent should seek interim custody and visitation orders immediately to avoid an extended period where the parent is not allowed to spend time with his or her children.

Status Quo with the Other Parent as Caretaker:

Family law judges consider the benefit of maintaining the status quo on kids during a divorce. Children are exposed to substantial changes during the divorce process so judges like to maintain the status quo when parenting arrangements seem to be working. If you are the parent who leaves the home, your spouse may be functioning as the primary caretaker for your kids while you are merely exercising sporadic visitation. If the children seem to be adjusting well and thriving in school, this may suggest that there is value in continuing this type of custody and visitation arrangement. If you seek immediate custody and visitation orders, you can mitigate this risk somewhat by preventing a prolonged period where the other parent appears to be primarily responsible for your children’s needs. By contrast, parents that leave the family residence for a prolonged period of time with minimal parent-child contact may find that they are unhappy with the parenting plan imposed by a family law judge.

Cost of Separate Households:

One of the biggest challenges for married couples during the divorce process is that the same income that was supporting a single residence must now fund dual households. The financial stress of supporting a second residence can be significant. If you are the primary breadwinner or the other parent is essentially a stay-at-home parent, the court could order you to make the mortgage payment and pay pendent lite (temporary) alimony and child support. In this situation, you are literally supporting the living costs of two separate households simultaneously, which may create enormous financial pressure to settle your case on less favorable terms. As long as you continue to reside in the family home, you cannot be compelled to pay child support or alimony because it is presumed you are providing financial support by paying the household expenses.

Impact on Equitable Distribution of Property:

While it is not impossible that you could move out of the family home and still be awarded the home in the divorce, this is fairly rare. If one of the spouses in a divorce is going to keep the home as part of the equitable distribution of property, the spouse who receives the home will usually be the spouse who continues to live there during a pending divorce. This outcome is even more probable if your kids are living in the home with your spouse. The judge may also be influenced by providing stability to your kids derived from their continued ability to live in the family home.

Our New Mexico family law attorneys at the Lightning Legal Group offer a free consultation in our centrally located offices in Santa Fe and Albuquerque during which we discuss your situation and answer your questions. Call us today to schedule your free consultation at (505) 247-2390 to learn about your rights and options.

The above information is designed solely to illustrate general principles of law, and does not constitute a specific legal opinion on individual cases. We suggest that you contact experienced legal counsel for a specific opinion tailored to your individual circumstances.



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