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Can I Keep Living at Home While My Divorce is Pending?

Posted by Furman & Zavatsky | Dec 18, 2021 | 0 Comments

Now that you have decided to file for a divorce, many important decisions must be made. One of the first is whether you should move out of the marital home during divorce, which is not always clear-cut and easy to decide. While you may want to put some distance between yourself and your spouse while the divorce is pending, there are often powerful emotional bonds and financial issues related to your family home that make the decision to move out tricky.

Can I Keep Living at Home While My Divorce is Pending?
Before moving out of the home during a divorce, there are many factors to consider.

Now that you will be ending a marriage, it means you will also be ending many of the benefits that come from being married, such as jointly filing taxes and sharing the family home with your children.

Every married couple's situation is unique, and living in separate homes while the divorce is pending might not be a financial option.

Put simply, one spouse moving out of the family home simply doesn't make economic sense, and both staying at home is the only option for the moment.

Under California law, you can file for a divorce and go through the proceedings while still living together. Still, this arrangement is frequently complicated as emotions during this challenging time are hard to control.

To help you make this crucial decision, our Los Angeles divorce and family law attorneys list things you should consider before you start packing boxes to move out.

Six Month Waiting Period for a California Divorce

Some states require divorcing couples to live “separately and apart” before a divorce will be granted, but not the state of California. However, California has a 6-month waiting period for a divorce.

Put simply, regardless of how and why you file for a divorce, you must wait at least six months before a family law court will finalize your divorce.

A spouse could ask the court for temporary spousal support (alimony) during this waiting period while the divorce is pending. This support, which a judge typically grants, could allow a spouse to financially support themselves if they decide to move out of the marital home.

It might allow them to afford new housing, food, and other daily living expenses. The option is not to pursue spousal support but instead continue to live together and provide direct combined financial support as you were.

Living in the same marital home during the six-month waiting period for a divorce to be finalized can be highly complicated and almost impossible in some cases.

Getting a divorce is frequently a highly emotional period in someone's life, especially if kids are involved. It is often not a realistic option to remain in the marital home during the six-month divorce process.

Issues of Living Together During Divorce

There are situations, however, where living together while the divorce is pending should never be considered an option, such as cases of:

Put simply, you should put you and your children's best interest as the top priority when deciding to continue to live together with your spouse.

If you are in a situation where your spouse is abusive, there are options for restraining orders and protective orders to get the abusive spouse kicked out of the marital home.

You could also get a court order for alimony for some financial stability, rather than forcing you to stay in a dangerous situation.

Put simply, there are no regulations or laws that require whether divorcing spouses can live together, which of course means you get to decide if you want to live in your marital home with your spouse while the divorce is pending.

One of the most apparent reasons to remain living together during a divorce is financial issues. In California, it's no secret that living here is very expensive.

An apartment's monthly cost is enormous and might not be realistic financially. It might make more financial sense to remain in the home but rather sleep in another room.

The Impact on Your Children

When parents are getting a divorce and still living in the same home, the impact on the kids could be devastating. The best interest of your children is a top priority.

Best Interest of Children Standard in California
When deciding to move out of the home, your child's best interest is a top priority.

Put simply, when children are involved in a California divorce, it's probably in everyone's best interest to move out of the home so the family can live in a safe environment.

This is a difficult time, and emotions are high. The potential for significant arguments between spouses in front of the kids is high, which could cause life-long emotional trauma.

Further, any decisions you make now about the family home could impact a judge's findings on child custody.

All family court judges know that constant changes in a child's life are complex and will generally attempt to keep the status quo if at all possible.

As noted, when kids remain in the family home during divorce, parents will often argue, creating significant disruption. Simply put, to maintain some stability in your kid's life, one parent should move out.

However, it would help to create a written parenting agreement before one spouse moves out of the home. This type of agreement should include:

  • a schedule for both parents to spend time with their children, and
  • state that the agreement does not mean either parent is forfeiting their child custody rights.

If the parents cannot reach a child custody and visitation agreement, then the parent who agrees to move out of the home should ask the family to establish a shared parenting schedule.

Unwilling to Separate from Spouse

If you decide to stay in the same home during divorce, then it might create an issue with your actual willingness to separate from your spouse. Put simply, a divorce is the end of your marriage, which means it's over and time to move on with your new life.

If you continue to live together, it might not move you toward a permanent separation. If you decide to remain living together because you are not entirely sure to want to get a divorce at this time, then it might be a better idea to get a legal separation rather than filing for a divorce.

Further, a California divorce petition will require you to list a date of separation, which is essential for several reasons.

For example, the date of separation could potentially impact your division of assets. You should generally expect a 50/50 split of all assets in a California divorce.

This only includes shared assets acquired during the marriage, which means any purchases you received before or after the divorce will not be split with your spouse in a divorce. In other words, this is considered separate property that you will keep in a California divorce.

So, rather than using the date of divorce, you could use the date of separation. Thus, if you keep living together and share a household and assets, the family law court might not be able to determine a legitimate date.

Simply put, this means any property acquired between the date you decided to get a divorce and the date you moved out could impact asset division.

Financial Impact Issue to Consider

Before you decide to move out of the family home, you should consider the potential financial effects of a move. The spouse who remains in the marital family home won't always receive the house when their property is divided by the California family court during the divorce process.

Financial Impact Issue to Consider in a Divorce
Before moving out of your marital home, you must consider the financial effects.

Put simply, a judge will not divide property in a divorce based on which spouse lived in the family home during divorce proceedings.

As noted, under law, judges are required to divide marital property equally, which usually means one spouse will get the house as long as the other spouse receives money or different types of property of somewhat equal value.

The family courts will also take into consideration other factors, such as:

  • contributions by each spouse to the household,
  • resources of each spouse,
  • employment,
  • length of the marriage,
  • age and health of each spouse.

If you decide to move out of the home during divorce, you would be wise to make a list with pictures of all the personal property in the house.

Typically, the higher-earning spouse that moves out of the family home will be required to keep paying some of the household expenses after the divorce, such as the mortgage.

Reach Out to Our Divorce Lawyers for a Consultation

It would help if you remembered moving out of the family home during a California divorce doesn't mean you will lose your legal right to keep the house after the divorce is finalized.

It would also help if you attempted to reach a written agreement on the terms of moving out by listing the details of your plan, and then both spouses signed it.

If you can't reach an agreement on which spouse will move out of the home, then you can ask the family court for help with temporary orders, but the court might believe it's in everyone's best interest for you to move out during the divorce.

On the surface, living together during a divorce makes financial sense, but it's often too emotional and not a wise decision.

Furman and Zavatsky are Los Angeles divorce and family law attorneys located in the San Fernando Valley area of LA County. We serve people throughout Southern California and offer a free case evaluation by calling 818-528-3471 or fill out our contact form.

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Family law disputes have the potential to have a significant impact on your quality of life and overall happiness. As a result, it is critical for you to protect your rights to the fullest extent possible when involved in a dispute related to family law. The lawyers of Furman & Zavatsky have the skill and experience to resolve your case as favorably as possible and provide compassionate and understanding legal counsel and representation. We also offer flat fee legal services for divorce and family law issues.

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