"Should I move out?" I hear this often from those contemplating divorce. Typically, it's the husband asking and he is initiating the divorce. He is worried about giving up his interest in the house, and the right to return.
From a strictly legal perspective, those fears are unfounded. If the home is jointly owned, each has an equal right to the house, an equal stake in its value. Similarly, the person moving out has the right to move back in, should that be necessary, even if the other spouse objects.
For a home owned solely by one spouse, the non-owning spouse has the same right to live in the home, or return to it, as the other. The non-owner cannot be evicted while they are married to the owner, except where an "order of protection" has been issued. (Whether an owner or not, an abusive spouse can be evicted by the court with an "order of protection".)
However, whether you should leave the family home has several practical considerations. First, can you afford to maintain separate households? Even the most spartan apartment will likely cost several hundred dollars a month, plus utilities, and require minimal furnishing, which you will have to purchase or rent, if they cannot be sourced from your existing possessions. ("Abandoned" spouses aren't always generous when it comes to sharing household furnishings!)
Couples that are able to work out a tolerable coexistence with separate bedrooms, shared but separate child care schedules, and even separate eating arrangements can save themselves thousands of dollars. In the process, these small steps in mutual accommodation may lead to greater benefits down the road through less contentious (and less expensive) negotiations dividing up their property and working out child custody and support plans.
Of course, "tolerable coexistence" and "mutual accommodation" are not always associated with couples in a divorce. More often, the chance to get away from each other and the constant bickering justifies the extra expense. The time apart can relieve the tension and anger sufficiently to bring about a more constructive resolution to the marriage, while occasionally providing a few couples I've known the opportunity to reconsider whether a divorce is what they really want.
Besides financial and quality-of-life issues, the vacating spouse should keep other "realities" in mind. The person remaining in the house often comes to expect that the home will be awarded to them, even when there is no equitable basis for doing that. With "locked-in", unrealistic expectations, the inevitable result is a more adversarial proceeding and the possibility the judge will order the home sold as the only way to fairly divide the property. Even so, judges are loath to separate children from their homes…whomever is awarded primary physical custody of the children will likely receive the house as well.
Lastly, before "hitting the road", the departing spouse should bear in mind that his/her most prized possessions will be left in the care of their spouse. If you leave on less than amicable terms, you would be wise to take with you all that is most dear. Otherwise, you may face the predicament of a husband who left his wife to move in with his girlfriend. Two days later, his wife telephoned demanding that he retrieve the rest of his clothing. Upon arriving at his former residence, he found several boxes stacked in the driveway, marked "suits", "pants", "shirts", etc. Surprised that his wife packed and cataloged his belongings, he was horrified to learn that she had also taken a scissors to every stitch he owned!
