Can I move out of the marital home?

Posted on Nov 10, 2023 by Katie Carter

Remember the ending scene in When Harry Met Sally?  Harry realizes he loves Sally and wants to be with her, and he says, “When you realize you want to spend the rest of your life with someone, you want the rest of your life to start as soon as possible.”

It’s kind of like that with separation and divorce, too.  When you realize that your marriage is over, you want the rest of your life to start as soon as possible.  Living together under the same roof is no longer tolerable.

The thing is, though, that moving can be difficult, and can open you up to additional complications, so you’re going to want to be careful.

When are we separated?

You become separated at the point that (1) at least one of you forms the intent to end the marriage, and (2) you stop cohabitating.

It’s complicated, but cohabitating is technically living together as husband and wife.  Whether you live under the same roof or a different one, you should be living as though you’re strangers to each other.

If you’re living under the same roof, that means that you shouldn’t be cooking or cleaning up after each other, running each other’s errands, doing laundry, sharing bedrooms, or behaving generally in the way that you would have before you separated.

Even outside of the home, there are things you should keep in mind.  Though it’s easier to keep domestic life separated if you’re truly living separately, you still have to represent yourselves to friends and family as a separated couple.  There’s no ‘playing the happy couple’ in public.

That doesn’t mean you’re just free to move out, though.

 Even though separation contemplates the possibility (or, maybe, the eventual probability) that you and your soon to be ex would live separate, rather than under the same roof, that doesn’t mean that someone moving out is necessarily the first step.

In Virginia, desertion and abandonment are grounds for a fault based divorce and, under certain circumstances, if you just leave the home, you could be found guilty of desertion.  Or, maybe more to the point, whether or not your soon to be ex is able to PROVE desertion (and ultimately get divorced using those grounds) he can almost certainly FILE for divorce on desertion.

Why does this difference matter?  Well, filing for divorce – whether or not he can eventually ‘prove’ it to the judge’s satisfaction or not – means that your divorce now falls within contested divorce territory.  Rather than negotiating a separation agreement, keeping things (relatively) amicable, and trying to resolve your differences between yourselves, you’re now on the court-based divorce track.  It’s definitely more adversarial, and generally both more time consuming and more expensive.  You’ll certainly have to pay a higher up front retainer to an attorney.

All that to say that, for practical purposes, what happens AFTER he files isn’t that important.  The fact that he CAN file means that he can make things more expensive and more difficult over the long term, not to mention more expensive.

I like to think of a divorce in terms of a nuclear bomb – and you are entrusted with the keys.  You could push that big red button at any point, if you want.  But do you want?

It can be tempting, when you’re mad or sad.  When you’re anxious or tired or jealous or feeling vengeful.

But, ultimately, not only would pressing the button be a major overreaction, it would also lead to your destruction, too.  And that, all too often, is the decision that divorcing couples are making.

If you leave, and he files for desertion, does that set off a chain reaction that you’ll both be powerless to stop?  Where does it end – if at all?  Does it ruin your coparenting relationship?  Does it make you particularly vengeful?  Does it mean that, rather than focusing on your goals and starting over as a healthier, happier version of yourself, that you’ll focus on how to make the process hard for him?  Will he?

Can we just agree that it’s okay if someone moves out?

That’s basically what you’d have to do – agree that it’s okay that one or the other of you moves out, if moving out is that important.

The catch, though, is that it’s really ideal to do this in writing.  I can’t tell you how many times clients have told me that they have an agreement, only to find that their soon to be ex goes back on it at the last minute.

I’m not saying that his intention was necessarily to be dishonest, but – without a writing to hold him to his promises – you may find, to your detriment, that he won’t.  And it’s just not a position that you want to be in, right?  I mean, if it’s as easy as just memorializing your intentions in writing (which doesn’t even necessarily have to be something that you rely on an attorney to prepare for you), then why not, right?

That’s the thing about agreements: they keep everybody honest.  You could agree, but make sure to do it in writing so that he doesn’t change his mind and file on desertion later.

Be aware of the ways in which moving will impact your arrangements – particularly custody.

Moving out changes the dynamic, sometimes to an extreme degree.  The biggest way I see this happening is in custody and visitation.

When you’re living in the same house, custody and visitation isn’t that big of an issue.  There’s no question where or with whom the child will live; though there can be some squabbling, or some Super Dad-type behaviors, in most cases the parties go on to continue to parent the way they did when they were married.  Many say that they want to keep things ‘normal’ for their children as long as possible.

But, when you live somewhere else, custody can become an even bigger issue.  You may find, too, that if you leave without enough of an agreement in place, that your husband starts to deny your parenting time, especially if he’s the one living in the home.

Let me be clear: he doesn’t have custody just because he lives in the house.  But if he lives where the kids live, and you don’t, you may find yourself in a really untenable position.  Could you go and take them from him?  Yes, potentially – but it’d be ugly.  No one ‘has’ custody in the sense that, unless and until there’s a determination made, you BOTH have custody.  But no one’s right trumps the other’s – still, could you physically remove the children?  I mean, you could.  But is it worth it?  And what does any of it do to your ongoing custody and divorce case?

It can be hard to say.  I’ve made general points here without specific facts, and custody is nothing if not incredibly case specific.  I am thinking of one particular case when I write this, but your situation may or may not be similar.

In order to leave without being charged with desertion, you need a super basic agreement that just says that – that you agree that it’s okay if one of you leaves and that you won’t pursue a divorce using desertion as grounds.  (Or, even, that you’ll only pursue a divorce on no fault grounds, if that’s your intention.)

But that doesn’t address custody and visitation – and doing custody and visitation makes it a much, much bigger agreement.  Frankly, at that point, you’d want to consult an attorney for sure, because there are so many related issues.

As you can see, it’s definitely possible for these cases to snowball, and its smart to consider whether you’d really want to move out of the marital residence – or whether you might protect your rights a little bit more if you wait it out.

It’s always a good idea to talk to an attorney before taking any kind of drastic action.  (For the record, I’d definitely categorize moving out as drastic.)

For more information, to request a copy of our divorce book or to schedule a consultation, give our office a call at 757-425-5200.