Divorce is going to mean at least one of you is moving, eventually anyway. But can the choice to move out before or during divorce impact your case? The answer is likely yes, but the extent of that impact will depend on the particulars of your case. That’s why it’s usually wise to consult with a Red Bank divorce lawyer before you do so.

We should start by saying that neither spouse generally has the right to force the other to move out of the marital home before the divorce is final. This is true even if only one party’s name is on the rent agreement or mortgage. There are a few exceptions:

• A restraining order. This can be issued by a judge under the New Jersey’s Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17. Under this provision, a judge can force the abusive spouse to leave the marital home against his/her wishes.
• Court-ordered removal for the best interests of the children. If you can present the Family Court judge with clear and convincing evidence that the presence of your estranged spouse is not in the best interests of your kids, they may be ordered to move out. Examples would be issues with chronic substance abuse, emotional/verbal abuse, or constant bad-mouthing/bickering with the other spouse.

But if you can stay - should you?

Unlike some states, New Jersey does not require a separation period. To cite irreconcilable differences - New Jersey’s no-fault divorce pursuant to N.J.S.A. 2A:34-2(i) - the couple need only assert they have lived in New Jersey for the past 12 consecutive months and have experienced irreconcilable differences for at least six months prior to the filing.

Whether a separated-but-living-together arrangement is going to work will really come down to the particulars of your situation. Do you feel safe? Are you financially capable of supporting yourself - and your kids - from a different residence? Is your emotional well-being suffering by continuing to share a residence during your split? Are you keen to start a new relationship? Do you have a child with special needs that makes it difficult for one of you to manage caretaking alone? Do either of you share an unrequited hope of getting back together that might complicate the situation?

There are many reasons why couples are unable to move out during - or sometimes even after - divorce. Often, it boils down to necessity. We see it more during times where finances are squeezed - a recession, a housing bubble, a bankruptcy, a pandemic, etc.

How Moving Out Might Negatively Impact Your Divorce

While there are many practical reasons a spouse might decide to stay while a divorce is pending, there are some legal considerations to factor in as well.

These could include:

• Child custody implications. Although N.J.S.A. 9:2-4 clearly holds that the rights of both parents are considered, there’s also a laundry list of relevant factors pertaining to the child’s best interest that are subject to the Family Court’s review. Among those is “the stability of the home environment,” and the “extent and quantity of time spent with the child prior to or subsequent to the separation.” The court’s goal may be 50-50 joint custody, but when one parent leaves the house, the judge may conclude that arrangement is working well and designate the parent who stays as the parent of primary residence. Furthermore, if you move, the court may decide your new residence isn’t suitable for your kids (particularly if it doesn’t have enough bedrooms or is far from the children’s school).
• Access to important records. Moving can be hectic. That’s especially true if it’s done amid heightened emotions. It’s possible you may forget some things. This can put you at a disadvantage with accurate calculation of marital property for equitable distribution purposes, but also if you need to locate certain records. These could include paperwork pertaining to retirement accounts, life insurance policies, health insurance coverage, taxes, joint accounts, property records, etc. Make sure when you move out that you at least have electronic copies of these documents.
• Financial burdens. While your divorce is pending, you may still be responsible for your share of the mortgage/rent, child support, caregiving expenses, vehicles - and possibly spousal support (called pendente lite alimony). It’s also not a good idea to move forward with a divorce proceeding without an attorney. (Those who do often end up losing more than they save on attorney’s fees.) That should be part of your financial consideration too. If you find it all gets to be too much, you could easily find yourself making sacrifices in order to maintain your support obligations.

Once you’ve moved out, it can be difficult to backtrack if you find it’s more difficult than you anticipated. That’s why so long as you’re safe and it’s bearable, it’s often best to take some time with that move and decision - and consult with a divorce attorney first before packing your bags.

Call Rozin|Golinder Law, LLC today at (732) 810-0034 for a free and confidential consultation.