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Should I Stay or Should I Go?

December 16, 2011

Countless divorce clients approach me with the same concern: If I move out of the house, will it be considered abandonment? The answer is no! “Abandonment” is one of the most misunderstood concepts in divorce lingo. In New York State, you must have a reason to get a divorce, called a “ground” for divorce. Abandonment is one of seven grounds on which you can commence a divorce action. In order to file for a divorce on the ground of Abandonment, you must show that your spouse abandoned you for a period of one year or more. Moving out of the marital residence after a divorce action is commenced is not considered abandonment. Even if you did abandon your spouse for a year, it merely provides your spouse with a reason to commence a divorce action. It does not in and of itself affect the outcome of the divorce action.

However, before you decide to move out there are other considerations you should discuss with your attorney. For example, you should consider whether or not you ultimately want to be awarded the marital residence when the divorce is finalized. Moving out during the divorce action can make it more difficult to later request exclusive use and occupancy of the marital residence, especially if your spouse would also like to retain the property.

If you have children, before you move out you should consider whether you want to be designated as the primary residential parent. Moving out and causing your spouse to even temporarily become the primary residential parent can make it more difficult to later argue that he or she is less fit to fill that role moving forward. In addition, moving out prior to having an agreed upon access schedule with your children is not generally advised. Finalizing an access schedule may take time and in the interim your access may be limited and may establish a precedent that could be more difficult to change.

You should also consider the cost of maintaining two households on an income that is accustomed to maintaining one. As soon as a divorce action is commenced, automatic orders go into effect which require both parties to maintain the status quo of the household finances, among other things. This means that both you and your spouse must continue to pay whatever expenses you paid during the marriage. If one spouse moves out, he or she runs the risk of being responsible for these expenses in addition to whatever new expenses are incurred in connection with a new residence.

Again, moving out of the martial residence during a divorce action is not considered abandonment. However, prior to deciding to move, you should discuss your options with your attorney.