In many instances, when meeting with a potential client seeking information about filing for divorce, he or she expresses concerns about what will happen to the marital residence while the parties are going through a divorce or after a divorce has been finalized. On some occasions, one party voluntarily moves out of the home. In other cases, one party would like to move out, but does not have the financial means to be able to do so. Many people are understandably attached to their homes and do not want to sell it in order to divide the marital estate. The following are some frequently asked questions relating to the marital residence in the context of a divorce proceeding:

Can I move out of the marital home?

Yes. Moving out of the marital home will not have an impact on your ability to get a divorce. Many mistakenly believe that by voluntarily leaving the marital residence they will be “abandoning” their interest in the party. That is simply not the case; if you voluntarily move out of the home, you will still have an interest in the home when the court considers a division of the marital estate.

If you take your children with you, make sure that you have your spouse’s consent and that you tell your spouse where you are living (unless you are leaving the house to escape an abusive spouse). You should work out a visitation arrangement that allows your children to continue to see your spouse. You should not keep your children away from your spouse unless you fear for your safety, in which case, you should contact the police, make a report, stay in a safe location, and file for an Order of Protection.>

Can I force my spouse to leave the marital home? (“Can I change the locks?” and “Can I toss my spouse’s things out on the lawn or sell them in a yard sale?”)

No. You cannot force your spouse to leave the marital residence without filing a petition and obtaining a court order. In the petition, you must allege and show that your spouse’s continued residence in the marital home poses a threat to your and/or your children’s mental or physical safety. Also, do not sell or dispose of your spouse’s things. This is called “dissipation” and may result in your receiving a reduced share when it comes time to dividing the marital property.

Can I stay in the house after the divorce?

Whether you can stay in the marital home after the divorce depends entirely on your overall financial situation. There are many variables that come into play when considering this option. If you have the cash available to buy your spouse out of his or her share of the equity in the home, the ability to make the mortgage payments on the home after the divorce, don’t need to use the proceeds from the sale of the home to pay down marital debts, or your spouse agrees to let you stay in the home, then you may be able to keep the home. If staying in the marital home is of the utmost importance to you, make that fact known from the beginning and try to work out a settlement that achieves that goal.