Ask a Divorce Lawyer: Will it hurt me in divorce proceedings if I move out?

Question: Can I leave the house and file for divorce later? 

We had agreed to sell the house but she backed down and I cannot live with her. Will this hurt me in divorce proceedings if I move out?

 

Answer:

It is not uncommon for one spouse to leave the marital home during the divorce. The divorce process is trying enough, without having to share a living space with the person you are least likely to want to see.

Although the decision whether to move and the move’s effects on the case depend on the unique facts and circumstances of the case (a thorough discussion of which would exceed the scope of this question-and-answer blog), there are certain themes all cases have in common.

First, the leaving party is less likely to receive primary physical custody of any child because courts tend to render decisions that maintain the child’s established custodial environment. An established custodial environment is a physical and a psychological environment where the child naturally looks for care, comfort, guidance and life’s necessities. This is usually the home where the child resided until the separation. (Of course, other factors, such as abuse in the home, could change the analysis). 

Second, the remaining party is more likely to receive exclusive possession of the home until the court issues its final divorce decree. This means you could leave for a few weeks but end up locked out of your home, figuratively and perhaps literally, for several months. 

Third, the leaving party loses considerable control over the property inside the home. (For example, you cannot prevent your spouse from taking a baseball bat to your favorite widescreen television in a fit of anger). However, leaving the home could calm the tension between you and your spouse and actually bring you back together. There is a certain cost-benefit analysis here that only you, knowing the facts of your marital discord, your spouse’s temperament, etc., can do. Ultimately, the decision is yours.

Keep in mind that I am a Michigan attorney and cannot give you detailed advice about the laws in Illinois. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately if you need additional information or legal representation, as most parties in divorce cases do. Cordell & Cordell has offices in Illinois.

 

Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

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