Contested Divorce? Make Sure You Think Before You Move Out

Contested Divorce Minnesota

Oftentimes, a party involved in a divorce wonders whether or not they should move out of the marital home. As with many legal issues, there is not necessarily one correct answer to that question. The answer will depend on each individual’s specific circumstances. Here are some things to consider before making your decision:

  1. Safety

    The safety of you and your child should be your number one priority. If either you or your child are in danger because of an abuser living in the household, you need to take steps to protect yourself and your family. This may involve contacting law enforcement or an attorney to assist you. In cases of domestic abuse, the safety of all individuals involved is paramount and other considerations should be of a lower priority to be considered only after safety is ensured.

  2. Custody and Parenting Time.

    If you want to move out of the home and intend to have your child stay in the home with the other parent, you are essentially implying that your child is safe with that other parent and that the other parent has the ability to care for the child in an appropriate manner. It will be difficult for you to argue later in the divorce that your spouse is not a fit and proper parent if you previously left the child in his or her care.

    In making an initial custody determination, as the court does in a divorce proceeding, the court is required to evaluate the factors contained in Minnesota Statute 518.17 often referred to as the “best interest” factors. Several of these factors may play in to your decision to move out of the marital home:

    • Primary Caretaker

      One factor is the child’s primary caretaker.1 This touches on subjects like which parent takes the child to the doctor, which parent bathes the child, which parents helps with homework, which parent prepares the meals for the child, etc. If you leave the home and the other parent takes over the majority of these duties because they are living with the child, this may impact how the court would analyze the best interest factors.

    • Adjustment to Home, School, and Community

      Another factor that the court considers when making an initial custody determination is the child’s adjustment to home, school, and community.2 The homestead and the fact that the child continues to reside there is relevant here. Also, if the child attends a local school, is involved in athletics in the community, or has neighborhood friends, these may also be examined under this factor. If you move out of the marital home, you may ultimately want to stay in the same neighborhood or other area close to the marital home. This might help neutralize this factor because both you and the parent residing in the home will be able to keep the child tied to their school and community.

    • Parenting Time

      Probably the most important thing to consider when deciding whether to move out of the home you shared during the marriage is parenting time. Ideally, you and the other parent will agree to a parenting time schedule prior to you moving out of the home. Failing to do so could result in you losing regular access to your child.

      If your spouse will not agree to a parenting time schedule or if you have reason to believe that your spouse will not uphold the parenting time schedule agreed to, you may want to continue to reside in the home to maintain your relationship with your child. If you move out of the marital home and do not have established parenting time, it could again create a precedent that the court may consider in making decisions during your divorce. The parenting time schedule you agree to with your spouse should be the parenting time schedule that you ultimately want after the divorce is final.

      For instance, if you are looking for a 50/50 parenting time schedule in the divorce, do not agree to an every other weekend parenting time schedule on a temporary basis. The problem arises where there is a lengthy separation prior to filing for divorce or that the divorce process itself continues over a long period of time. The court could find that the temporary parenting time schedule has worked well in the interim and decline to modify that parenting time schedule significantly if the court believes that modification of the schedule would be disruptive to the child. There are ways to address the issue of temporary parenting time after a divorce has been filed, but, a lengthy separation in which a temporary parenting time schedule has already been established may still impact those proceedings.

  3. Who Gets the Home?

    If you want to be awarded the home in the divorce proceeding, you should think carefully before you move out. If one party remains in the homestead and continues to pay the mortgage and utilities, it may establish a precedent that the court will consider when making the decision about who will be awarded the home. If you are separated for a while, the court may be reluctant to disturb an arrangement that has been working successfully.

  4. Personal Property

    If you do decide to move out of the marital homestead, you are able to take your personal property, including your clothing and jewelry, with you. Again, it would be ideal if you and your spouse were able to reach an agreement on the property division. However, that is not always possible in every case. If you take other property with you when you move out, you should create a list of everything you took. You should also take pictures and/or video documenting the items you took and their condition. If you leave behind significant personal property, you should also create a list of what remains in the home and its approximate value. You should also take pictures and/or video of the items left behind. This would include not only items in the home itself, but also items in a garage, barn or storage unit.

    Creating these lists will likely make it easier to discuss and divide personal property in the divorce and can deter your spouse from disposing of personal property after you have moved out of the marital home. To streamline this process, focus your attention on items that have significant monetary value or specific items of that you would like to be awarded. You do not need to inventory or photograph every single item of personal property in your home. This would be unduly burdensome and most people do not want to spend attorney’s fees arguing about personal property with little value of items which can be easily replaced.

If you or someone you know has questions regarding moving out of the marital home during divorce, contact me today for a free consultation at 651-647-0087, or reach out via our online contact form. We look forward to hearing from you.

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