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Divorce Preparation: Step 10 - Stay Put (until further notice)

By Jennifer Rice, Esq.

Here is the tenth post in a series about preparing for divorce. Divorce attorney Michael Sherman of the Alabama Family Law Blog has tips on divorce. I've added my comments in italics .

We are nearing the end of our series on practical steps to take when you are facing an imminent divorce. We have reached Step 10 - Stay Put (until further notice).

One of the most common questions I am asked by my clients is whether they can move out of the house. In most cases my answer to them is to stay put. It is not the answer most of my clients want.

I know that things are stressful. I know that they will likely get worse before they get better. Unfortunately, there are several reasons to avoid leaving. The most important ones are the following:

1. It could jeopardize your custody claim. If you end up in a custody dispute, then if you leave the house and the children remain there with your spouse you will almost guarantee that you will not receive primary custody. If the case becomes contested, it could drag out for many months (even a year or two). If your spouse has had primary physical custody that entire time and you?ve had alternate weekend visitation, then unless your spouse has made major mistakes in the interim, they will likely maintain primary custody. Although Colorado does not have "primary custody", if you do move out of the marital home and happen to have less parenting time with the children as a result, the Court may look at the "status quo" when trying to decide what parenting time arrangement would be best or less stressful for the children.

2. It could affect your property interests. You?ve moved out. Your spouse pays the mortgage the entire time the case is pending. Some judges may factor that in when making the property division. In Colorado, marital property and marital debts are divided equitably (fairly) although generally most of the time that means equally (50/50). I disagree that it could affect your property interests in the way that Mr. Jeffries describes. However, if you are not in the house, you do not know if you are getting foreclosure notices, if the plumbing breaks, or the house is being maintained.

3. You will lose leverage in the negotiations. This is big. You want the divorce. Your spouse doesn?t. You decide you have to get out of the house. You move to an apartment and are paying your rent and the home mortgage. Now under the Pre-trial Status Quo Order you may be required to keep paying it as long as the case is pending. You have just given your spouse a major incentive to drag out the litigation. I see it happen all the time. Eventually you decide to settle for much worse terms because you can?t keep paying for two households. Do not make this mistake. Some couples cannot afford to keep up two households until the marital property and debts are provided. Think carefully about whether you can afford to move out right now. I also see that possession is 9/10ths of the law -- the Court is less likely to order that you move back into the house while the divorce is pending if you have already moved out.

Moving out of the house can have dramatic effects on the case. Do not do it without discussing it with your lawyer and giving it a great deal of thought. You should know, also, that some judges will consider a motion for temporary possession of the residence pending the trial. This varies dramatically from county to county (and sometimes even from judge to judge) so you will want to discuss it with your lawyer. In Colorado, generally Parties either go to a hearing on Temporary Orders or reach agreements about the temporary orders. Temporary Orders can include who has temporary possession of the house while the case is pending and who is responsible for paying the mortgage, utilities, etc.

It goes without saying that if domestic violence is an issue, then all of this is moot. You will need to take whatever steps you must to protect yourself. Just make sure you let your lawyer know what is going on. In the case of domestic violence, your lawyer may actually be able to have your spouse removed from the house. If domestic violence is an issue, this is serious and you need to have a discussion with your attorney and/or domestic violence agency about a safety plan. If mere annoyance or bad behavior is happening, you want to think carefully about whether to try to obtain a protection order to force someone out and use as "leverage" regarding the children -- the Courts do not look on this fondly and it often backfires.

Full post as published by Colorado Family Law Blog on September 26, 2007 (boomark / email).