Should I Move Out of the Marital Home During a Divorce?

Divorce and child custody cases mean that there is a lot of change happening, with more to come. This change comes in the form of financial and emotional changes. In almost all cases, one of those big changes is the parties’ residence. During a divorce, emotions run high and a situation can become tense between spouses. Naturally, one of the spouses will often leave the marital home before the litigation begins or even after. Whether or not you should leave your home during a divorce will depend on several issues.

The first issue to consider is whether you have children and what your custody goals are for the children. If your goal is to obtain primary or sole custody of the children, leaving the home without taking the children with you will likely undermine your case. It will allow your spouse to make the argument that he or she is the primary caretaker of the children, and therefore the children should be allowed to stay with them. Another option could be leaving the house and taking the children with you. However, if the divorce has already started, it may be necessary to have your attorney file a motion asking the court for permission to do so. If you fail to seek the court’s permission and take the children anyway, your spouse may file a motion asking the court force you to return the children to the marital residence. The reasoning behind this is that stability is essential for children, and the court would prefer the children remain in the residence as long as possible to help with the transition and chaos that comes with divorce.

Property interest is another issue to consider. In New Jersey, marital property is equitably distributed at the conclusion of a divorce. Equitable does always mean equal, but it often does. If your home is marital property, leaving the home will not mean that you have somehow abandoned your interest in the home, nor does it change the home from a marital asset to a separate one. You will still be able to ask the court for your fair share of the equity of the home that accrued during the marriage, even if you move out. Moreover, as New Jersey is a no-fault state, there is no concern that leaving the home will be considered abandonment of your spouse for purposes of having a divorce granted or considered.

in helping our clients make the important decisions at every stage of their divorce. Let us help you with taking the next step and building your future going forward. Contact us today at (732) 529-6937 for an appointment.

About the Author


John Nachlinger is a co-founder and managing attorney of Netsquire, a family law firm focused on streamlining divorces through effective mediation, settlement drafting, and court filing assistance. As a New Jersey Supreme Court Certified Matrimonial Law Attorney and Qualified Mediator, John guides couples toward equitable agreements without the cost and stress of litigation.

Recognized as a New Jersey Super Lawyer for over a decade, John’s client-focused approach aims to foster understanding during challenging transitions. With a background spanning top law journals, judicial clerkships, and boutique family law firms, John now applies his analytical skills to create workable solutions for all parties. His mediation services reshape the divorce journey by prioritizing compassion and compromise.

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