When you and your spouse have decided to separate or divorce, it may be uncomfortable to continue living together in a shared family home. This can lead to difficult questions regarding who should move out of the family residence. The right answer to this question can vary from couple to couple depending upon the specifics of their individual situation. It is usually best to consult with an experienced Minnesota divorce attorney about your case before making any decisions including the choice of who should move out of the family home.
Who Should Move Out of a Family Home?
If the home is owned by one of the spouses and is considered non-marital property, then the other spouse has no legal rights to the home and should move out. This type of situation is rare, however, and usually a family home will be jointly owned by both spouses together. If the home is jointly owned, then usually neither spouse is required to move out and neither can be forced to leave (except in limited exceptions where there is a situation of abuse). Theoretically, this means that you could continue living together in the family home until you have agreed on who gets to keep the house permanently or until a judge has determined who should get to keep the house.
If you are not comfortable living together, then one of the two spouses can move out and can do so without jeopardizing his or her right to the house. You do not give up a claim to your home or lose your legal right to the house if you decide to move out of the residence, so leaving the home should not jeopardize your position in divorce negotiations or during litigation. Of course, just because your right to the house shouldn’t be jeopardized by leaving doesn’t mean that you’ll necessarily want to leave the house.
You and your spouse should try to come to an agreement together about who should remain in the home until a final decision is made on what to do with the house. Typically, if one spouse is caring for the children, that spouse (and the kids) should stay in the family home to provide continuity. If there are no kids and only one of the spouses can afford to remain in the family home, then it may make sense for the other person to move out. The factors that can affect this choice are very personal and you should consider whether you are willing to leave or whether you want to stay no matter what your spouse decides to do. Your divorce attorney can help you to try to work out an agreement with your spouse about what will happen to the house both in the short-term and long-term so you can find a solution that works for you.