SHOULD I LEAVE THE MARITAL HOME?

There are several issues raised by the actual separation of the parties in a divorce setting and some thought should go into the decision of whether, and when, to move out of the marital home during a divorce.

If continued residence in the marital home could result in incidents of domestic violence, or if there is so much hostility between the parties that they cannot refrain from fighting in front of the children, then one should seriously consider moving out of the marital home immediately. Continued residence by both parties in the marital home under such circumstances is emotionally harmful to the children and could result in domestic-violence related criminal charges or the issuance of restraining orders, both of which further complicate the divorce proceedings and could have a drastic impact on court rulings regarding parental responsibility and parenting time.

In other situations, there at lease three (3) primary considerations one should explore prior to moving out of the marital residence: (1) financial considerations; (2) parenting time considerations; and (3) abandonment issues.

Financial Considerations

When the parties are separated, Colorado law provides for the payment of temporary maintenance (alimony) from the higher earning spouse to the lower earning spouse. In cases where the parties’ combined incomes are $75,000.00 or less, the formula for such temporary maintenance is generally 40% of the higher earning spouse’s gross monthly income less 50% of the lower earning spouse’s gross monthly income. Colorado law also provides for the payment of child support when the parties do not live together. Thus, when a party moves out of the marital home, there will generally be resulting temporary orders for maintenance and child support between the parties.

In these difficult economic times, it is not unusual to find that, prior to separation, even two-income families are living at or beyond their means in one household. A separation generally results in the parties having to support two households on the same available income. Add in the additional obligations of temporary maintenance and/or child support, and the financial impact of separation can be staggering. The costs of maintaining two households during the divorce often results in the parties being unable to meet all of their debt obligations, such as mortgages, credit cards, student loans, car loans, etc. This, in turn, can affect the parties’ creditworthiness and future ability to obtain loans or credit post-divorce.

Generally, it will easier on the parties financially to share the marital home as long as possible, if they can do so. As the case progresses, and as the parties narrow the issues and begin settlement negotiations, they will get a better picture of what their post-divorce financial position will likely be. For example, it may become clear that neither party can afford to maintain the marital residence and it must be sold. It is certainly easier to make decisions regarding post-separation housing when the parties already have an idea of the financial obligations they will likely have post-divorce (marital debts, child support, maintenance, etc.).

Because of the potential financial implications of separation, it would be wise to consult with an attorney about the advisability and/or timing of your decision to move out of the marital home prior to doing so.

Parental Responsibility/Parenting Time Considerations

As long as the divorcing parties remain in the marital home, status quo is generally maintained with respect to the minor children. The parties typically maintain their regular parenting roles---the same parent takes them to school, picks them up, bathes them, feeds them, puts them to bed. Both parents get to see the children as often as before. However, when one party leaves the marital home, this is no longer possible and the parties must come up with a new parenting plan. Oftentimes, this is a serious area of contention.

In situations where the parties are already in agreement how the parenting plan will look (where the children will primarily live, how many overnights the absent party will have, etc.), it is advisable to put that agreement in writing and submit it to the court. If there is already agreement on these issues, they will probably not have a great effect on the decision to leave the marital residence.

If, however, the parenting plan will be disputed, it may be wise to hold off on moving out until such time as there are temporary orders entered as to what the parenting plan will look like. If a party moves out absent an agreement or order on parenting issues, this sometimes results in the absent party being denied parenting time and can lead to costly legal battles over the issue.

It is not always immediately obvious, but when a party moves out, he/she should consider finding another residence near the marital home. This insures that matters such as geographic distance, travel time, etc., will not hamper the absent party’s ability to exercise parenting time. For example, if a party moves out and leases an apartment many miles (or towns) away, it may be difficult to have overnight visitation during the school week due to the time involved in getting the children to school from the new residence.

Also, when making alternative living arrangements, some thought should be given to the type of residence obtained. For instance, if the parties have three children, a one-bedroom apartment will probably not be seen as adequate living accommodations for overnight visitation.

Again, it would be wise to consult an attorney regarding these issues prior to moving out of the marital residence.

Abandonment Issues

If a party leaves the marital home prior to, or during, the divorce proceedings, he/she should take steps to insure that such action is not later characterized in the proceedings as “abandonment.” Even though Colorado is a “No Fault” divorce state, an accusation of abandonment could harm a parent in child custody proceedings.

Some of the factors the court may consider in allocating parental responsibility and parenting time are a party’s absence from the marital home and/or failure to provide support for the minor children.

If a party moves out of the marital home, he/she should continue to financially support the minor children, even absent an order to do so. Likewise, he/she should exercise as much parenting time with the children as possible and remain involved in the minor children’s day-to-day lives.

From the children’s perspective, their parents’ separation will be quite traumatic and both parties need to continue to spend time with the children and make sure they know that both of their parents still love them, will continue to love them and that both of their parents will always be there for them.

From a legal standpoint, one should always be aware that “status quo” is oftentimes difficult to overcome. If a party moves out and exercises little parenting time, it will be difficult to convince the court at the permanent orders hearing, many months later, that the absent parent should now be allowed more parenting time.

Conclusion

The decision of when (or even whether) to move out of the marital residence either before or during a divorce proceeding is complicated and there are many issues to consider prior to arriving at such a decision.

Ultimately, the parties to a divorce will at some point become separated. The question is not whether it is going to happen, but when it should happen and under what circumstances.

If the relationship between the parties is such that domestic violence or trauma to the children is a possibility, then the parties should consider immediately separating. If not, it would be wise to consult with an attorney prior to separation so the decision will be an informed one, designed to minimize the legal and financial implications of separation.

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