Is Staying In Your Marital Home After A Divorce A Good Idea?

Legal Lotus - Family and Trial Attorneys

The marital home can become an issue during and after a divorce. Is moving out the best and only solution? Some states have “Separate and Apart” laws, allowing the couple to live in the same house if there are no marital relationships. Florida is one of those states.

If you decide that you will not be living together, you need to decide which one of you will vacate the familiar family premises. Which option is best for you?

Your Ex and Your Wellbeing

Living with the person you have divorced can be an invitation to daily arguments and frustration. Obviously, physical separation is a better choice. Even if finances are a problem, living, at least temporarily, someplace inexpensive or with a family member or friend could save you anxiety.

What About the Children?

While it may appear to benefit any children to have both parents living under the same roof, repeated tension and conflict will be difficult for them. For their sake, it may be advisable for one parent to move out. This can mean that the custodial parent will uproot the family to another location. Whatever you decide may influence to judge regarding any child custody decisions.

A critical factor is the children’s school. It will obviously be in their best interest to be in a familiar environment and to be with their friends. Even if the children are too young for school, if the home is in an area with an excellent school district, that will count as a factor.

Children and Custody

Judges understand the negative effect of divorce on children. They will usually attempt to maintain as much stability as possible in the children’s lives. A custodial parent can argue that uprooting the children can be disruptive for them and that he or she should get the house for the children’s sake. The other parent will argue the unfairness of losing custody for vacating the marital home in the first place – even though he or she moved for the sake of the children.

Parenting Agreement

Rather than engaging in circular reasoning, the parents should prepare a parenting agreement in place before moving out. This agreement should be specific regarding a custody schedule for both parents, and it should make clear in writing that at no time is either parent waiving custody rights.

If the parents are unable to agree, the parents who is relinquishing the marital residence needs to have the court establish and approve a parenting schedule.  The sooner this parenting schedule is in effect, the better for all parties.


Whatever spouse remains in the house understands that this is only a temporary arrangement. When the issue comes before the court, the judge may have different ideas. According to state law, a judge must distribute marital assets on an equitable basis. This usually translates into one spouse keeping the family home while the other spouse, who has moved out, is fairly compensated for his or her share. Certain states take “fault” into consideration, i.e., if one spouse is guilty of infidelity or abuse, this can be considered when the court divides the assets.

Other factors that the court will consider are how much each party contributed to the household (that includes the contribution of a homemaker), how long the couple was married, and each party’s age and general health.

If a parent wants to keep the home, he or she must ensure that he or she can afford all related expenses or make up the difference by adjusting alimony payments or giving up some other assets.

His, Hers, Ours

The parent who moves out should create a list of everything in the home, such as furnishings and appliances, and other items of value that may later be disputed in court. He or she should only take clothing and personal belongings such as jewelry.

If the Parties Cannot Agree

It is obviously best if both spouses can agree on a written parenting plan without agreeing to relinquish any marital assets. If this proves impossible, a court can issue temporary orders to maintain the maximum status quo. However, the judge may decide that a move by one parent is in everyone’s best interest. And also, issue such an order detailing a temporary parenting schedule and asset division until the divorce becomes final.

Creative Alternatives

If the parents are agreeable, the marital home issue during the divorce can be settled by “bird nesting.” That means that the birds (children) remain in the house. The parents divide their time between a new home and the marital home with the children. This way, the children can enjoy the comfort and familiarity of the “nest” while both parents switch residence on agreed-upon terms, such as each week or each month.

If the house is big enough, they can divide it in to two separate homes. The parents simply need to agree on the use of the common areas.

Paying for Two Households

If the parent who is the higher wage earner moves during the divorce, it is likely that he or she will be maintaining and paying for two residences. This can include rent, mortgage, and insurance. The court may, at its discretion, allow the moving parent to access addition marital assets to compensate for the loss of the home.

Making a New Start

As much as you and the children love your home, it may serve as a constant reminder of your failed marriage. Because of the bad memories, you may decide to give up your beloved home and create a new beginning in a new home. With your help, the children will adjust eventually.


The legal process can get difficult, which is why we always recommend that you seek the assistance of counsel; or at least have a consultation. Schedule a consultation with one of our attorneys today to review the issues of your case, the legal options you may have, and certain rights that pertain to your unique situation.

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