| This is often a decision made based on emotion, but to protect your interests it is best that you consult with an attorney before leaving the marital residence. Although it may seem like the only choice at the time, leaving the marital residence can lead to unfavorable repercussions during the divorce.
Whether or not you have actually moved out of the marital residence is judged on your actions. Did you take personal items with you (clothing, automobile, sentimental possessions, etc.)? Did you act as though you were going to declare a new residence for a significant amount of time? Note that storming out of the house and sleeping a night or two at a friend's or relatives home is typically not considered to be actually moving out of the marital residence. Once you leave the marital residence for a reasonable amount of time (this can vary depending on the situation), it may be difficult to return. It is suggested that an agreement in writing is drafted stating that reentry into the marital residence is an option, but as a significant amount of time passes an agreement of this type has very little leverage in the court. The primary reason for consulting a lawyer prior to making this decision, is to avoid the accusation of desertion. Desertion in many states carries with it significant legal repercussions. Some states consider it as a ground for filing for divorce, but, above all, it can work against you in child custody disputes. The court may view you leaving the marital home as also you leaving your child(ren). Keep in mind that once you leave the marital residence, your spouse may not have the enthusiasm to proceed with the divorce in a timely and amicably manner. Typical spouses who are in the process of divorce and who are still living together tend to be more focused on finalizing the divorce because they want to move on with their lives. Spouses that are not living together have a tendency to feel as though the divorce has already taken place. |