Immigration guide: In the US, who moves out of the family home during a divorce?
Many couples stay together after they separate, usually because it’s cheaper to live in one place with one set of bills. This is not possible for everyone, particularly if there is a high level of conflict.
The questions then becomes, who moves out? If there are children, generally the family lawyers should insure that the children’s stability is priority. Since instability will be foreseeable, all efforts of minimizing changes for the children should be the goal for both attorneys representing the clients.
Generally, it is the person who will be caring for the children that should stay in the home. However, if there are no minor children presently living with the couple, some common questions will be: Can you afford to get or rent a second home? Will either one of you be keeping the home? Can either of you afford to keep the home? If you are not married, who owns the home?
Do you risk losing your share of the property if you leave? If you have a legal right to a share in the property, you will not lose it by moving out. However, if you move out of the home while your spouse remains, it might be difficult later to convince the court that you should be allowed to return. If there was a domestic violence issue and a restraining order has been temporarily ordered, the restrained party must comply with the court order to move out.
The court will set the issue for another hearing and subsequently decide, including but not limited to, whether the restrained party should still remain out of the home, who should pay the house bills, debts, and what household belonging should be taken out of the home. The issue of the sale of the family home can also be decided. If you are moving out, either by court order or by choice, you have a right to take reasonable share of the household belongings. Again, this may require both attorneys to negotiate who will take the “refrigerator, beds, etc.”
As for household utilities, if the court has not ordered a party to pay, it may be incumbent upon the party whose name is on the bill and living outside the home to provide notice to the other party that he/she will be closing the account. As for joint credit cards with your spouse, consider calling the financial institution and telling them that you are getting a divorce and is closing your account. If you have a line of credit or an open mortgage with your spouse and you are worried about your spouse withdrawing money, you may want to call the bank to “freeze the line of credit.” But keep in mind, all such actions should be discussed with your attorney since the court may deem such actions unfair and even illegal.
Can you lock your spouse out? If there is a restraining order for one spouse and the restrained party violates any portion of the order, you can call the police. There will be a criminal case opened for disobeying a court order (in California, Penal Code section 273.6). Absent a court order, each spouse has a legal right to be in the home as the other, until a court decides otherwise or one of you agrees to move out.
Who should pay the household bills? If you want your spouse or partner to move out, or if you are asking for an order for exclusive occupancy of the home, you should be prepared to pay the household bills, such as the rent or mortgage, utilities, taxes, and the like. You can apply for an order for support from your spouse to help you with these bills. But your spouse may be able to ask that the house be sold and the proceeds be held in trust until your case is resolved. These issues are complex, so speak to a family attorney before deciding what to do.
What can you do if your spouse harasses you after you separate? You can apply for a restraining order. You can ask the court for an order preventing your spouse from calling, emailing, texting or any contact. Additional orders may be made that a spouse should stay away from the home, work, or any relevant location.
In sum, the first decision when you separate will be whether you need to live in separate homes and the collateral issues briefly outlined above. It is best to seek the advice of a family attorney as to all these complex issues when a separation or divorce is sought and imminent. - Philippine News
The questions then becomes, who moves out? If there are children, generally the family lawyers should insure that the children’s stability is priority. Since instability will be foreseeable, all efforts of minimizing changes for the children should be the goal for both attorneys representing the clients.
Generally, it is the person who will be caring for the children that should stay in the home. However, if there are no minor children presently living with the couple, some common questions will be: Can you afford to get or rent a second home? Will either one of you be keeping the home? Can either of you afford to keep the home? If you are not married, who owns the home?
Do you risk losing your share of the property if you leave? If you have a legal right to a share in the property, you will not lose it by moving out. However, if you move out of the home while your spouse remains, it might be difficult later to convince the court that you should be allowed to return. If there was a domestic violence issue and a restraining order has been temporarily ordered, the restrained party must comply with the court order to move out.
The court will set the issue for another hearing and subsequently decide, including but not limited to, whether the restrained party should still remain out of the home, who should pay the house bills, debts, and what household belonging should be taken out of the home. The issue of the sale of the family home can also be decided. If you are moving out, either by court order or by choice, you have a right to take reasonable share of the household belongings. Again, this may require both attorneys to negotiate who will take the “refrigerator, beds, etc.”
As for household utilities, if the court has not ordered a party to pay, it may be incumbent upon the party whose name is on the bill and living outside the home to provide notice to the other party that he/she will be closing the account. As for joint credit cards with your spouse, consider calling the financial institution and telling them that you are getting a divorce and is closing your account. If you have a line of credit or an open mortgage with your spouse and you are worried about your spouse withdrawing money, you may want to call the bank to “freeze the line of credit.” But keep in mind, all such actions should be discussed with your attorney since the court may deem such actions unfair and even illegal.
Can you lock your spouse out? If there is a restraining order for one spouse and the restrained party violates any portion of the order, you can call the police. There will be a criminal case opened for disobeying a court order (in California, Penal Code section 273.6). Absent a court order, each spouse has a legal right to be in the home as the other, until a court decides otherwise or one of you agrees to move out.
Who should pay the household bills? If you want your spouse or partner to move out, or if you are asking for an order for exclusive occupancy of the home, you should be prepared to pay the household bills, such as the rent or mortgage, utilities, taxes, and the like. You can apply for an order for support from your spouse to help you with these bills. But your spouse may be able to ask that the house be sold and the proceeds be held in trust until your case is resolved. These issues are complex, so speak to a family attorney before deciding what to do.
What can you do if your spouse harasses you after you separate? You can apply for a restraining order. You can ask the court for an order preventing your spouse from calling, emailing, texting or any contact. Additional orders may be made that a spouse should stay away from the home, work, or any relevant location.
In sum, the first decision when you separate will be whether you need to live in separate homes and the collateral issues briefly outlined above. It is best to seek the advice of a family attorney as to all these complex issues when a separation or divorce is sought and imminent. - Philippine News
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