When spouses make the decision to separate or divorce, the next step typically involves one spouse moving out of the family home. But is this next step the right step? If you are the spouse thinking about moving out, make sure you have considered all the potential legal ramifications of leaving your home.
Should you stay or go? Here are four questions you need to be able to answer before making a move:
Is the home marital property, and if so, do you want to keep it?
If the two of you purchased the home together after you were married, then most likely the home is a marital asset subject to equitable distribution. Since New Jersey is an “equitable” rather than “equal” distribution state, a judge could look at the equitable distribution factors and award more of the home’s value to one or the other of you, but you start out with the same rights to possession. On the other hand, if one of you inherited the home or purchased it individually prior to your marriage and did not take steps to transmute it to marital property (by changing the title to “tenants by the entireties,” for example), then the home may be the separate property of that spouse. The non-owner spouse might still have a claim to part of the home’s value, based on things like contributions to mortgage payments or improvements to the home, but the owner spouse will generally have a right to more value, as well as the right to keep possession after the divorce.
If the home is marital property and you think you might want to keep it, then think twice before creating a status quo that gives your spouse possession. The problem with a home, of course, is that you can’t simply divide it up and each carry off your own share. Leaving the home won’t affect your economic rights to the property, but in an eventual battle over possession, the spouse who remains living in the home could have a slight edge.
Do you have an agreement regarding payment of home expenses?
Simply moving out of a family home does not remove responsibility for home expenses. If you are planning to move into a small and inexpensive apartment, it might come as a rude shock to discover that you are still on the hook for contributing to a much costlier family home. On the other hand, if your spouse remains in the home and is willing to take over the expenses single-handedly, be aware that this is likely to put your spouse in a better position regarding continued possession of the home.
The best approach is to work all of this out before moving. Add up all the expenses of the current home as well as the new home, and decide who will be paying for what. Remember to consider not only mortgage payments, property taxes and utilities, but also the hidden costs that are harder to estimate, such as unanticipated repairs and potential increases in taxes or utility costs.
Do you have an unresolved child custody situation?
If you are planning to ask for primary or shared custody of children, make sure you address this before you move. You may find it challenging to schedule time with the kids once you are out of the home, and seeing them only occasionally after moving can set a dangerous precedent regarding custody. Another thing to consider is that if children remain in the home with one parent, this creates more of a reason for a judge to award that parent possession of the home.
If your children are old enough, involve them in your moving process. Knowing that they will have a place of their own in your new home can help them feel secure and increase their willingness to spend time there. At the very least, have a signed agreement with your spouse regarding temporary custody and visitation before you move, and be sure that the agreement reflects your ultimate goals and not just an expedient current arrangement. Expedient arrangements have a way of turning into the status quo over time.
Do you have an inventory of marital property remaining in the home?
Unless you and your spouse have already agreed on how to divide all of the items in the home, be sure to list and photograph all items with significant value before you leave. Take copies of purchase receipts if you have them. If you suspect that an item may be particularly valuable, but you don’t have any good evidence of this, arrange for an appraisal. You don’t want to end up agreeing that your spouse can keep whatever is left in the home, and then realize later that you forgot about that piece of original artwork hanging in the office.
Not sure whether or not you are ready to make moving out of the family home a New Year’s resolution? Our family law attorneys can help you tie up any loose ends first. Contact us for free your confidential consultation.