Is Moving Out of the Family Home in a Divorce Right For You?

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Is Moving Out of the Family Home in a Divorce Right For You?

You’ve made the decision that your marriage has run its course. With certain exceptions, by law divorce in Maryland requires that the couple live separate and apart for 12 months prior to filing for divorce. So this means someone has to move out of the marital home. When I do consultations with people considering a divorce, one question that often comes up is, “Should I stay, or should I go?” The short answer is, it depends, but here are some considerations when deciding whether to move out. 

Who gets to stay in the house during separation?

There is no hard and fast rule about who gets to stay in the marital home in Maryland during the separation. Often, both people want to stay in the home and expect the other to move out. As a practical matter, unless there is some extenuating circumstance like abuse, or another form of a protective order, the person who wants the divorce more moves out. However, moving out for the separation can impact who gets to live in the house during the divorce proceedings since Maryland Courts prefer to maintain the status quo until issuing the final divorce decree. This does not mean that the house can’t be transferred as part of the divorce, but since divorce is a process that takes months at a minimum, moving out during separation will likely be extended for a considerable length of time.

What if there are children?

Minimizing disruption to the children’s lives is always a priority for the courts, so while custody may be joint, it can work to the favor of the parent living in the family home. They certainly will have more access to the children during the divorce, and it may be a factor that sways the court when deciding the physical custody arrangement. For example, if the parent who moves out relocates out of the school district, this can impact the children’s education, which could cause a court to limit custody to weekends and vacations.

What are the financial implications?

A couple’s home is often their biggest asset and their biggest debt. Just because one person moves out doesn’t mean they give up the value of the house or the mortgage as a result. The person who wants to keep the family home must be able to buy out the other person as well as qualify for a new mortgage in their name only. This creates leverage for a person who has access to additional resources like separate property or financial assistance, which they can use to force the other spouse to give up the home. If neither party can afford the home on their own, and the court does not award sufficient child or spousal support, the only option is to sell the home and equitably divide any proceeds remaining after paying off the mortgage between the divorcing parties. 

What’s the best course of action?

The answer to this question is so case specific, and it has such major implications for both parties, that it is a key reason to confer with counsel before making a major decision about moving out at separation. In over 25 years of working with Bethesda clients on family law and divorce matters, I have seen many different scenarios, and I find that what works for one person may be the worst approach for another. If you are considering a separation, contact me for a consultation.

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About The Author

Lloyd A. Malech
Malech Law is located in downtown Bethesda, Maryland. For more than 25 years, Mr. Malech has provided aggressive and effective representation for his clients in Maryland and the District of Columbia. He has been honored with the Lawyers of Distinction Award Recognizing Excellence in the Area of Divorce and Family Law for the past three consecutive years and has just been recognized as a Family Law Top 10 Attorney for 2021 by “Attorney and Practice Magazine.” Visit Malechlaw.com or call (202) 441-2107

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