Introducing New Monthly Series – Ask an Attorney

Who gets the kids? Who gets the house? When should I move out? Can I date?

The divorce process is overwhelming, and people need answers to a lot of questions.

Equally important, they need to have their misconceptions cleared up.

In our new series, #AskAnAttorney, we are answering questions we get time and time again, from people just like you. Tune in the last Thursday of every month, as one of our Attorneys will answer one of those common questions.

To kick off the series, Income Partner, Rebecca Cahan is answering the popular question…

Will I Give up Any Rights if I Move Out of the House?

“Putting aside children and support issues, no one gives up “rights” to the marital home as property by moving out or staying. Your house is either marital property in which you have a financial interest, or your spouse’s in which you do not have financial interest, despite whether you stay or move out during the divorce process. The more important distinctions involved are parenting and financial arrangements, which can impact staying or leaving,” Rebecca said.

What if my spouse solely owns the property?

How property is held, meaning how it is titled, generally does not signify that you will lose your rights if you leave the house.

For example, the property could be titled solely in your spouse’s name, but you still have a financial interest in that property – meaning both you and your spouse purchased the house together subsequent to your marriage.

In this situation, if you move out of the house (even temporarily), you do not “give up your rights” to the property, as it is still “marital” property under the Illinois Marriage and Dissolution of Marriage Act.

Can we both continue to stay in the family house?

Many couples continue to stay in the family house during the divorce process for a variety of reasons.

For example, it may be more economically feasible for both parties to remain in the same house until the financial aspects of the divorce are final, as opposed to residing in separate households, which can unnecessarily increase expenses. Relatedly, you might be in a situation where neither you, nor your spouse, can afford to individually maintain the house until you divide all assets in a final Judgment for Dissolution of Marriage.

Many couples also continue to stay in the family house during the divorce process for their children. Sometimes, couples decide it is best for the children to live with both parties until the divorce is final. For many, the stability, certainty, and continuity of both parents inside the house helps the children slowly transition into two separate households. This type of situation is most successful for parties who are amicable and can set aside their differences.

How will leaving the house impact the children?

Physical separation during the pendency of a divorce with children involved can be difficult. It should be done in a way that allows the children to transition smoothly, going from living with both parents, to now living with each parent separately.

It is best practice to arrange a parenting time schedule (even a temporary one) prior to leaving the house. A set parenting schedule with both parties provides children with stability during the transition to two households. Leaving the house without (at minimum) a temporary schedule, can cause significant emotional disruption and confusion to the children – leaving them wondering, who is taking care of me tonight? It can also deprive children of time with one parent versus the other, serving as an ongoing source of conflict.

Should I move out before the divorce is final?

This depends on your financial situation and if there are children. If you are considering moving out before the divorce is final, you should first consider the financial impact.

Will you need financial support from your spouse to maintain a separate residence?

Can your combined monthly income cover two households?

As touched on earlier, you should also consider the impact on the children and the most practical parenting schedule that serves your children’s best interests.

What if I feel unsafe in my house?

If you feel that your physical or emotional well-being and safety is in jeopardy by continuing to reside in your house with your spouse, then you should consult with an attorney as soon as possible. Depending on the severity of the circumstances, an attorney might recommend you obtain an Emergency Order of Protection through the court. This would give the court ability to order your spouse to stay away from you and/or your children. An attorney might recommend petitioning the court to obtain exclusive possession of the home. In other words, have the court order that your spouse leave the home.

If ever you feel in immediate physical danger, you should immediately contact the police.

Oftentimes, a party does not know he or she has the right to ask the court to order a spouse to leave the house to protect their physical and emotional well-being and safety. This lack of knowledge results in a party continuing to live in a state of fear for a prolonged period, further compromising their safety. When there are children, living this way can become even more precarious and can negatively impact their emotional and physical well-being.

Safety issues are top priority and must be dealt with immediately.

These types of situations are very fact-specific. An attorney with experience should address them to ensure you protect yourself and your rights appropriately.

Who stays in the house when you have kids?

The determination of who moves out depends on the circumstances of the family. When you have children, and you and your spouse are residing together, some parties can reside as a family utilizing a parenting schedule. If they are unable to reside together, but also unable to physically separate (be it for financial or other reasons), there can be what we call a “nesting” schedule.

A nesting schedule is where each party will leave the house for certain periods of time to allow for one party to have exclusive time with the children. Nesting schedules can seem difficult and unnatural, but they do work with the appropriate parameters in place. Many parties consider this as a short-term solution, while financial aspects and other parenting aspects are being finalized or litigated.

Generally, when both parties can afford to reside in separate households during the pendency of a divorce, it is important to have a temporary financial agreement in place (who pays for what expenses for the households and the children), and a parenting schedule in place. A parenting schedule helps children avoid parental disputes (who they will be with and when), and ensures that both parents have access to the children.

Many times, one party will want to remain in the family home and not move because it provides comfort to the children. This person considers themselves to be the children’s primary caregiver. Other times, one party advocates to remain in the house because they ultimately want to be awarded the family home upon final divorce.

If no temporary resolution is set, as to who moves out and who stays, a mediator will address that issue, or the court to effectuate an interim solution. 

The question, Will I Give up Any Rights if I Move Out of the House, is complex and influenced by personal situations and circumstances. Our attorneys have the skills to guide you through the separation process, ensuring you understand all options.

Have a question you would like answered? Email it to team@bergerschatz.com as it may appear in an upcoming Ask An Attorney post. All submissions will remain anonymous.

Learn more about Rebecca Cahan and contact her here.

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