Should you share the marital home during divorce? That depends on your situation, and there are many things to consider before making that decision. Do you have children? What is your financial situation? Can you live together in relative peace now that your marriage is ending, or will it be too difficult? What grounds for divorce are you filing on? These are issues to take into account when deciding if you should share the marital home with your soon-to-be-ex spouse.
Because every single marriage and divorce comes with its own relationship and family dynamics, financial concerns, and other individual and intricate issues, couples who are splitting up are advised to seek the guidance of experienced
divorce attorneys. Your attorney can ensure you understand the legalities involved in both sharing the home or moving out, as well as helping you determine what may be most practical and beneficial for your circumstances. In the meantime, the following sections offer some general considerations to think about.
Do You Have Children?
If there are children in a marriage,
child custody lawyers often recommend not leaving the residence until there is a game plan in place as far as a custody arrangement and visitation are concerned. If one parent leaves, the other could potentially gain an advantage in custody decisions, because the parent who is still in the marital home may be looked at as the primary parent. . This is not always necessarily the case, though, because courts don’t make best-interests-of-the-child determinations based on a single factor. Rather, judges in New Jersey consider various factors as described in
NJSA 9:2-4(c) when making custody and visitation decisions. However, with that being said, the parent who does not have as much physical proximity to children could still find the process more challenging, depending on the outcome they are seeking.
What Makes Sense Based on Your Financial Situation?
Not surprisingly, in many cases sharing or not sharing the marital home is driven by financial concerns. If you are relatively amicable, it might make sense to live in the same residence and keep your financial status quo in place, especially when each of you will have added expenses for legal fees. . If sharing a home is a necessity or an attractive option because of finances, you should have a conversation about your new living situation and establish an agreement that lays out boundaries and protocols. This agreement could include who can use what household areas at what times, who will perform what chores, who will pay for what, who outside of people living in the home can visit and when, how you will address disagreements, and other concerns of sharing a home while ultimately working to end your relationship.
On the other hand, if you can afford to live separately, it can spare you the awkwardness, tension, and anxiety of living under the same roof. Consider whether paying two rents, two sets of utility bills, and other dual household costs are affordable for you and your spouse, or if having additional bills to pay will only add to the stress in your relationship and cause extraordinary contention while also going through the divorce process. Also, unless you and your spouse have an agreement that states otherwise, you may still be on the hook for helping to pay the mortgage/rent at the marital home, as well as utilities, in addition to your new housing, if you move out- or vice versa.
Another thing to think about that concerns financial issues is that by staying in the marital home, you will continue to have access to documentation you will need as evidence during asset and debt division in your divorce proceedings. If you move out, there is the possibility of your spouse feeling territorial over the home and its contents, including important documents, and you may have a harder time obtaining documents; or this paperwork may be suddenly “lost” when you need it. If you end up not sharing the marital home and you are the one who moves out, protect yourself by making copies of banking statements, bills and other key paperwork.
Is Your Relationship with Your Spouse Highly Contentious?
If your relationship is highly contentious, the difficulties of living together and fighting with each other while trying to negotiate a settlement or go through adversarial court proceedings may simply be too much to endure—not only for you and your spouse but also for your children. When arguments, resentment, and anger flow from divorce court to the home environment, it can be gravely damaging to kids. There may also be the temptation for parents to get children on their side in parental disagreements, causing further confusion and distress in families.
And, of course, if domestic violence has been an issue, sharing the marital home should be off the table: the spouse who has been the victim of domestic abuse may have to get a restraining order to keep the other spouse out of the home.
What Are Your Filing Grounds for Divorce?
These bears talking about, too. If you are filing for divorce based on the grounds of separation for at least 18 months, you must live “separate and apart in different habitations,” as described in
NJSA 2A:34-2(d). So one of you will need to live outside of the marital home. Which one of you that is will depend upon your own wishes and circumstances. But filing under a separation is not the only ground for divorce you can choose to file under so this shouldn’t weigh heavily in your criteria on whether to move out or not.
There is no one answer to the question of whether spouses should share the marital home during divorce. Every relationship is highly unique and each one has its own legal and personal considerations. Speaking to a skilled divorce lawyer can help you come to a decision for your situation.
Contact an Experienced New Jersey Divorce Lawyer for Answers to Your Questions
As experienced Bergen County divorce attorneys, we are often asked by clients whether they should leave or stay in the home pending a divorce. The answer to the question of whether the marital home should be shared during divorce differs for every situation. Once we learn about your unique circumstances, we can provide legal guidance tailored to your case. Contact [MFR] Men’s & Fathers’ Rights Divorce Lawyers at (201) 880-9770 to speak with a knowledgeable New Jersey attorney.
