3 FACTORS TO CONSIDER BEFORE MOVING OUT PRIOR TO A DIVORCE

WHEN TO HOLD, FOLD, WALK AWAY, OR RUN: 

One of the most common questions we get as divorce practitioners is whether it is okay to move out prior to divorce. To paraphrase the great country and western singer Kenny Rogers, you have got to know when to hold, fold, walk away, or run. The following are three factors to consider before moving out prior to a divorce:

1. SAFETY: If your or your child’s safety is compromised, then it is time to run.

However, the decision to move out is just your first step to securing your safety.

Next, you need to consider filing for an order of protection, which is a court order restraining your spouse from having further contact with you. Through an order of protection you can also receive possession of the marital residence, custody of the children, and child support.

Orders can be broken, so it is important that you also develop a comprehensive safety plan. For more information about orders of protection and safety plans, please check out Domestic Violence and the Law, a pamphlet put out by the Young Lawyers Division of the Missouri Bar.

2. CHILDREN: If safety is not an issue, and minor children are involved, it is best to hold off on moving out until you can get a temporary custody order.

Moving out without a custody order creates a variety of problems. For instance, how are you and your spouse going to share custody of the children? Is your spouse just going to let you take the children with you, or allow you reasonable visitation? Leaving your spouse with the children can subject you to retroactive child support.

Having children does not necessarily mean you are stuck with your spouse until the divorced is finalized. Your attorney can request a temporary custody order. A temporary custody order will ensure that when you do move out, you won’t be leaving your children behind.

3. FINANCES: If safety is not an issue, and you don’t have any children, then the decision whether to hold, fold, walk away, or run prior to a divorce is going to be based on your financial situation.

If your spouse earns enough income to maintain the home, then walking away, or moving out prior to the entry of a divorce petition may be a viable option. However, keep in mind that without a court order there is nothing requiring your spouse to pay the household expenses, which is why often times the most prudent course of action is to wait to move until the divorce is finalized, or until you receive a temporary order apportioning responsibility for the household expenses.

If your spouse does not earn enough to maintain the home then it may be best to hold and stay in the house until the divorce is finalized, unless you are willing to financially maintain both households during the pendency of the action.

Ultimately, the decision on if and when to move out prior to a divorce needs to be made after consultation with an attorney who is experienced in family law matters. So don’t be a gambler; before you move out please consider these factors and discuss them with your family law attorney.

Joe Kuhl is a partner with Shea Kohl Law, LC.  He has been with the firm since 2004.