If We Get a Divorce, Do I Have to Move Out?

If We Get a Divorce, Do I Have to Move Out?


One of the first and major considerations of divorce is where you will live after you’re no longer married. Who stays and who goes from the marital home is not always a simple matter.

One of the first and major considerations of divorce is where you will live after you’re no longer married. Who stays and who goes from the marital home is not always a simple matter. The person who leaves during separation isn’t necessarily giving up the home forever. Likewise, the person who stays during that time doesn’t necessarily get to remain there.

Retention of the marital home is just one of the many stresses of divorce. You need to rely upon an experienced family law attorney to guide you through the process and protect your interests on many fronts, including where you will live after the marriage ends.

If you are considering divorce or have been served divorce papers and are unsure about your living arrangements, you can count on our attorneys at Fournier Law for help. We offer more than 60 years of legal experience, helping individuals and their families navigate divorce.

If you live in Tallahassee, North Florida, the Big Bend region, or anywhere else in the state, call Fournier Law for compassionate, knowledgeable, and thoughtful legal counsel. We understand that sometimes, there is no place like home.

What Should I Consider When Deciding If I Want to Stay or Move Out?

With regard to the marital home, there are three key considerations you should use to make your decision and the court will use to render its decision about who stays or moves out.

Safety. If you are being abused by your spouse, or your children are, safety is paramount. You can ask the court for a protective order that forces the abusive spouse out of the house. But if that’s going to take time, you need to remove yourself from the home immediately. You should also get the court’s permission to remove your kids if they’re in danger to avoid accusations of kidnapping. If you or your kids are in an abusive situation, call a family law attorney immediately.

Comfort. Even if a divorce is amicable, it is often untenable for spouses to reside in the same home during or following divorce. If the situation is too uncomfortable, one spouse will need to move somewhere else, even if only temporarily.

Children. In any divorce, the utmost concern is for the best interest of the children. With all the upheaval children endure during divorce, being able to remain in their home is one constant they can take comfort in. The court will advocate for kids to remain in their homes until a divorce and parenting plan are finalized.

What Options Are There for Living Arrangements After Divorce?

You and your spouse need to agree to living arrangements or the court will decide. There are five key options:

  1. You and your spouse could agree to stay in the home. This arrangement is undoubtedly easier if it is a large house. If it's a small one, it will likely be uncomfortable to live under the same roof.
  2. You and your spouse could agree to sell the home and divide the proceeds per the divorce agreement. You would each then find alternative places to live.
  3. You or your spouse can buy the other’s interest in the home. This will probably involve cash, property division arrangements, or both. The ability of one spouse to buy out the other will depend on their ability to obtain a loan.
  4. You or your spouse may refinance the home so the mortgage and the deed are in only the name of the spouse who will keep the home. If both names appear on these after divorce, you are both legally responsible for paying the mortgage.
  5. Another option is to allow the kids to remain in their home while you and your spouse shuttle between residences instead. Called “bird-nesting,” this option requires that each of you have a place to live when it’s the other parent’s turn to spend time with the children in the marital home.

Does the Person Who Stays Get to Keep the House?

The old saying that “possession is 9/10 of the law” is not true. The spouse who remains in the home for whatever reason – safety, comfort, or for the benefit of the children – does not necessarily get to continue residing there after the divorce.

The marital home is not merely a highly sentimental place. It is often the largest asset a couple possesses. Because it is, the house will be part and parcel of the division of assets in a divorce agreement. Florida law recognizes the equitable division of marital assets. Equitable division is not necessarily a 50/50 division of assets, but one considered to be reasonable by the court.

Getting Experienced Legal Counsel

Living arrangements during and after divorce are complicated. The finances that once supported a single household must now support two. Often, the parent with physical custody of children wants to remain in the home to provide stability for them. In other cases, a spouse wants to remain in the home for sentimental reasons. An experienced and compassionate family law attorney who understands whatever your reasons may be for wanting to stay in the marital home or not, and the financial realities of either situation, is the best advocate you can have.

At Fournier Law, we have helped hundreds of clients from Tallahassee and throughout the state of Florida who faced difficult decisions about where they would live during and after divorce. If you are considering divorce or have been served with divorce papers, call our office to schedule a time to talk.

You have so many decisions to make. Let us help guide you through them. Call us at Fournier Law today.

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