I just need to get out of the marital residence!

Posted on Nov 8, 2023 by Katie Carter

When a marriage starts to fall apart, it’s definitely not the most comfortable experience – especially if you and your soon-to-be ex are still living under the same roof.  In most family law cases, the facts really, really matter, so its hard to make generalized, one-size-fits-all type statements.  If you’re living in the same home, but you feel like you desperately need to get out of the house, you’re in the right place.  Let’s talk about what might be going on here.

Is there a risk if I just move out?

Technically, until there’s a separation agreement in place, if one or the other of you leaves the marriage or the home that you’re living in, you could be guilty of desertion or abandonment.  (You may also want to read up a little on constructive desertion, too, in case that applies, but that’s a little outside of the scope of this article.)

Desertion is a fault based ground for divorce, which means that – if one of you moves out – the other could file for divorce on desertion.  Now, technically speaking, desertion is one of the weakest of the fault based grounds of divorce, and its probably unlikely to mean that the ‘guilty’ one (remember, this is a civil, not criminal, case) will receive less of the marital assets (though it is technically possible).  But what it does almost certainly mean is that you’d have to pay a higher retainer to an attorney (contested divorce is more expensive than uncontested), and probably spend much more in attorney’s fees overall to defend against the allegations.  In general, its not a position you’d probably want to find yourself in.

Are we separated?

In Virginia, there’s not really any such thing as a legal separation.  You don’t have to fill out any forms or file anything with the courthouse.  You are separated when (1) one of you forms the intent to end the marriage, and (2) you stop cohabitating.  Some people live separate under the same roof, while others prefer to live out their period of separation elsewhere.

Because we’re generally concerned about desertion (and anything that could make your divorce more difficult or expensive – sorry, it’s just an occupational hazard), it’s ideal if you get a brief writing in place that says that you’ve agreed that it’s okay if one of you moves out and that this should not be construed as desertion.  You don’t technically need this, but it would be good insurance against him changing his mind later, especially if he gets mad about something.  (Hey, it happens.)

You could just agree orally, but that’s slightly riskier.  In any case, best case scenario is to clearly establish your intentions here.  In writing, if you can – though that’s not technically legally required, its just a good practice.

What if we’ve discussed a divorce, and we’re in agreement?

Good!  Discussing the divorce and being more or less in agreement is nice – though I don’t mean to imply that you should both immediately agree about how all of the assets and liabilities will be divided.  I just mean that, as it relates to the divorce itself, the two of you are on the same page.

From that point, ideally, you could go on to negotiate a separation agreement.  A separation agreement is basically a legal contract that divides the assets and liabilities of the parties between them so that they can pursue an uncontested divorce.  At that point, once you’ve signed, you’d be free to go.

How long does it take to negotiate a separation agreement?  I want to leave NOW.

That’s an impossible question to answer!  Getting a separation agreement in place sometimes takes a week or two and, in other cases, takes years.  I’m not even sure what the average is, but, in my experience, it takes at least a few months.  It’ll take longer if you have bigger issues, like custody and visitation or spousal support.

Getting a separation agreement in place is important.  It protects your right to receive anything you might be entitled to under the law, and it prevents your ex from making a huge fuss about something later (like desertion) and surprising you.  It’ll help make sure that you keep your legal fees to a minimum and gives you more control over the outcome.

Believe me, raining on your parade gives me no satisfaction.  But what would make me even less happy is hearing that you knew you shouldn’t go, you left anyway, and it created big problems for you.

I’m not worried about desertion.  I doubt he’ll do that.  Can’t I just go?  Where should I go?

Hey, it’s a gamble!  I always tell my clients that they know their husbands better than I do, but, then again, one of my clients told me once that she literally felt like she didn’t know her husband at all until they decided to divorce.  So, maybe people are just irrational and its difficult to tell what they’ll do when they’re scared, hurt, upset, sad, lonely, or angry.

There’s no one stopping you.  You can just go – it’s just that there may potentially be consequences.

Even if he’s not likely to pursue desertion, keep in mind that this is a possibility.  Keep in mind, too, that where you go will likely matter a lot.

You want to go stay with your mom, sister, friend, or neighbor?  You want to get your own apartment, or buy your own house?  Those are options – and probably ones that wouldn’t make anyone raise their eyebrow too much, though I would be careful (especially if you’re buying a place) about using a source of separate, rather than marital, funds.  (If you’re separated already, anything you earn, purchase or acquire post separation is separate anyway – but if you’ve used money you’ve saved from the marriage for your down payment, for example, you’ll have to make up for his half of that later on in equitable distribution.)

If you hear nothing else, dear reader, hear this: You should NOT move in with a new boyfriend.

I know, I know.  Fun-Ruiner-in-Chief over here, right?

Unless and until you have a separation agreement in place, you should NOT move in with a boyfriend or someone you’re seeing or someone you hope one day in the future to maybe date.  For one thing, your ex will likely be angry, which means he’ll be exponentially more likely to do something drastic, like file on fault, which will make everything take longer and cost more.

Even more importantly, though, is that adultery complicates matters.  Most importantly, adultery is an absolute bar to spousal support except in cases of manifest injustice.

I hear what you’re thinking.

But what if we’re just friends?

But what if we haven’t had sex?

Who’s going to know where I’m living anyway?

I … really don’t think any of that is going to work.  Usually, in adultery cases, we tell people that we need a corroborating witness, but, if that witness is a private investigator, its sufficient for the PI to see the couple go into a home or hotel, survey the exits, and leave the next day.  It’s really the opportunity to have sex that can convince a court that adultery has – in all likelihood – taken place.  It’s not very common that we have actual physical evidence (like, a video) of adultery taking place.  So, even if you’re not having sex, even if adultery violates your deeply held religious beliefs, even if you’re currently solidly in the friend zone, it’s dangerous territory.

It’s not smart to move in with a boyfriend before you negotiate a separation agreement, especially if you’re hoping to receive spousal support.

I don’t want anything!  I just want OUT!

No, no, no.  Please don’t say that.

Look, I know.  It’s bad.  It’s really hard – maybe even feels impossible – to stay in the same place before your separation agreement is finalized.

But, please, please don’t waive your right to anything you’re entitled to receive under the law just to make it all go away.  Talk to an attorney, determine what your specific rights and entitlements are, and do what you need to do to safeguard them.

Take your portion of the retirement, your portion of the equity in the home, your share of the bank accounts, negotiate spousal support, establish custody and visitation and child support – and do it with your head held high.  Leaving without your entitlements would only serve to make life more difficult, maybe not today, but later on down the line.

Just – don’t.  You deserve it.  You earned it.  In all likelihood, you’ll need it.  Don’t cut corners now, or you’ll regret it later.

What if we don’t agree and we can’t negotiate a separation agreement?

I can’t make your husband agree to negotiate an agreement, so, if he won’t, there’s no other alternative than to file for divorce in circuit court.

This will probably make your case take longer and cost more, but it’s the only alternative.  You may want to schedule a pendente lite hearing, which would help you get temporary child and spousal support established – so it’s possible that, at that point, you could move out.  I still wouldn’t move in with a boyfriend or potential boyfriend, because of the adultery thing – it’s just needlessly risky.  But, if you can afford it, at that point you could get an apartment or move back in with family or friends.

There’s no magical solution here, but it is important to act strategically, rather than reactively, to make sure that you don’t compromise any of your options or entitlements.

For more information, register to attend one of our upcoming monthly divorce seminars or schedule a consultation with a licensed and experienced Virginia divorce and custody attorney.