Living at the marital home is awful, will leaving affect my divorce?!

If you’re heading toward divorce but still living with your spouse, the best case scenario is that it’s uncomfortable and awkward. The worst case scenario is that it’s intolerable or even dangerous. Moving out may improve your mental health, but be sure to consider whether it’ll compromise your position in divorce.

If you’re moving out of the home, are you going to be punished for “abandoning” the family? So long as there’s a fair financial arrangement in place between you and your spouse, the answer is no.

However, before moving out, you should first consider how the move may affect your interest in the equity in the home for purposes of property division and any potential impact on your prospects for parenting time.

If I leave the house, is that “abandonment?”

The equivalent of “abandonment” in MA divorce law is called “desertion.” Under MA law, desertion is a fault-based grounds for divorce. To establish desertion, you must prove 1) that the person left voluntarily and without justification and with no intent to return, 2) that the other spouse did not consent, and (3) that the party who left has been gone for at least one year before filing of the divorce.

First, this “fault-based” grounds for divorce was more useful before no-fault divorces became the norm. Back in the day, you needed a legally-approved reason to get divorced. Now, not wanting to be married any longer is a good enough reason.

And if you plead a fault-based ground for divorce - like desertion - you have to prove it in order to be divorced. So why take on an extra evidentiary burden? There are some cases in which it can be argued that pleading on fault-based grounds is preferable as a matter of strategy. But those are few and far between.

Also, even if you plead no-fault, if the other spouse’s leaving the house caused economic hardship, you can still pursue a credit for any resulting financial burden. So very rarely does it make sense to plead “abandonment” or “desertion,” as it’s called in MA.

Will moving out affect my interest in the home?

Property division is usually one of the key issues in divorce: how should the assets and liabilities of the marriage be divided. And equity in the home is sometimes one of the more valuable assets.

If you’re leaving the home, the court expects that the parties have in place a fair financial arrangement. If the party staying at the home is struggling to pay the bills, and the other party can afford to help financially, the court may order contributions.

If a significant period of time passes during which the party not living in the home did not, but should have made contributions, the court may award the party staying in the home a credit or order a disproportionate division of the assets as compensation.

Will moving out affect my prospects on parenting time?

The party staying in the home where the children live usually gains some leverage on the issue of parenting time. Why? It’s simple math: The parent who stays in the home usually spends more time with the children. This isn’t always the case, but usually, that’s how it plays out.

And one of the first questions a judge asks when assessing parenting time is: “What has the arrangement been?” Judges try as much as possible to avoid disrupting the parties’ ongoing arrangements. The less they have to change, the better. After all, one of the primary goals in divorce is to minimize disruption to the children.

Therefore, if leaving the home has the potential to negatively affect your parenting time, you may want to plan with an attorney before making the leap.

Summary

Living together as you’re heading toward divorce can be difficult, and sometimes intolerable. There’s nothing wrong with leaving the home. But it’s best to plan to do it in a manner that preserves your financial interest in the home and your prospects of a good parenting arrangement if you have children. Some planning up front can save you money and headache later.