Birmingham Divorce Lawyer Answers: Should You Move Out of the Marital Home?

Posted by Steven D. Eversole | Jun 22, 2013 | 0 Comments

You may have recently read about the high-profile divorce of entrepreneur and reality star Bethany Frankel. The two are embroiled in a bitter custody battle and the disputes have gone public.

And yet, the two continue to live together in their New York City apartment.


Our Birmingham divorce lawyers know there is a very good reason why two people who seemingly hate one another would continue to live together under the same roof throughout their divorce proceedings – even though she could easily afford to move someplace else.

The reason, as speculated in the media, was that if one party moved out, it could be construed under state law as "abandonment," and could result in making it all the more difficult to retain rights to that property when it comes time to the asset division portion of the divorce.

The reality is that every state is different. However, in New York, similar to Alabama, property that was obtained during the marriage is considered marital property. As a marital asset, it would be subject to division in the divorce settlement, regardless of who lives there.

The key determination with these issues is whether the property is marital property or separate property. Alabama courts treat most property that a couple acquires during the course of marriage as marital property. That means that a judge has discretion to divide the property as he or she sees fit, regardless of who actually owns the property.

However, property may be considered separate if it was acquired prior to the marriage or if it was received as a result of a gift or inheritance. Separate property is usually retained by the individual owner. The one big exception to this might be if the property was used jointly by both parties throughout the marriage. So for example, if your spouse owned a home before you married, but you both lived there throughout the duration of your marriage, that property could be subject to asset division in the divorce. This is usually only done though in longer-term unions or when there are special circumstances.

That doesn't necessarily mean that moving out of the home is advisable. For example, if your spouse has a greater income and you want to retain the house and negotiate a plan wherein he pays all or part of the mortgage, leaving the home may affect your ability to negotiate that kind of agreement.

The primary reason you may want to reconsider leaving is for the purposes of child custody. If you want to fight for primary custody, leaving the marital home – where your children are staying – could affect that claim. Until there is a clear parenting plan that will allow you to remain involved in your child's daily life, you may want to hold off on moving.

If the decision is made for you to leave, there is still much that should be discussed and established before you leave. For example, there should be agreements made about the care and maintenance of the property, interim financial obligations, items left at the property, boundaries for privacy and exclusive use and/or possession.

On the other hand, if there is domestic violence involved, your first priority should be to protect yourselves and your children. Your lawyer can advise you of how you may be able to have your spouse removed or how to safely flee the situation while still retaining your property rights. 

Your ultimate course of action really depends on the situation. The bottom line is that moving out of the marital home in Alabama is a decision you shouldn't make without first consulting with an experienced divorce attorney who can advise you of all your rights and options.

If you are contemplating a divorce in Birmingham, contact Birmingham Family Law Attorney Steven Eversole at (866) 831-5292.

Additional Resources:

Should You Move Out of The Marital Home? Learn From Divorce Attorneys, Not The Tabloids, June 11, 2013, By Jeff Landers, Forbes

About the Author

Steven D. Eversole

J.D., Samford University's Cumberland School of Law, Birmingham, Alabama B.A., University of Alabama, Tuscaloosa, Alabama


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