Should I Move Out of the Marital Home During Divorce Proceedings?

Deciding to end a marriage is one of the most stressful experiences a person can face. The marital home, once a place of shared life, often becomes the center of conflict and emotional tension. You may feel like you are walking on eggshells, and the simple act of being in the same house creates unbearable stress. The urge to leave, to find a quiet place to think and start fresh, can be overwhelming. But a pressing question stops many people: What happens if I move out?

This decision is not just a personal one; it carries significant legal and financial implications.

How Does Virginia Law View the Marital Home?

First, it is important to dispel a common myth. Moving out of the marital home does not, by itself, mean you are giving up your financial claim to the property.

In Virginia, the court divides property using a system called “equitable distribution.” This means a judge will divide all marital property in a way that is deemed fair, which does not always mean a 50/50 split.

• Marital Property: This generally includes all property, including the house, that was acquired by either spouse during the marriage, regardless of whose name is on the title.
• Separate Property: This is property acquired before the marriage, or during the marriage as a gift (not from the other spouse) or an inheritance.
• Hybrid Property: This is a property that is part marital and part separate.

The marital home is almost always the most significant piece of marital property. Your financial interest in the home’s equity is protected by law as marital property, even if you are not the one living there when the divorce is finalized.

The Virginia Separation Requirement: A Key Factor

A critical, local factor in this decision is Virginia’s mandatory separation period. To get a no-fault divorce, Virginia law requires that you and your spouse live “separate and apart, without cohabitation” for a specific period.

• One Year: If you have minor children, you must live separate and apart for one continuous year before the court will grant your divorce.
• Six Months: If you have no minor children and you have a signed, written Property Settlement Agreement (also called a Separation Agreement), the required period is reduced to six months.

Because most couples in a contested situation do not have a signed agreement, the one-year separation period is the most common requirement. This law, by its nature, implies that one person will likely have to move out to start the clock on this separation period.

Can We Be “Separated” While Living in the Same House?

Virginia law does allow for “separation under the same roof,” but it is a difficult standard to meet. It is not enough to simply move into a spare bedroom. You must prove to the court that you have lived entirely separate lives.

This would require you to show that you:

• Do not share meals
• Do not share household chores (like laundry)
• Do not attend social functions together
• Do not engage in any intimate relations
• Have essentially become roommates

Proving this to a judge can be challenging and often requires testimony from a third-party witness. For this reason, one person physically moving out is the clearest and most definitive way to establish the date of separation.

What Are the Potential Risks of Moving Out?

While leaving does not forfeit your financial stake, it does carry serious risks that must be considered, especially concerning child custody and temporary finances.

Risk 1: Setting a “Status Quo” for Child Custody

This is perhaps the most significant risk of moving out. If you leave the children in the marital home with your spouse, you are creating a new “status quo.” Even if you believe it is temporary, your spouse’s attorney can argue that this new arrangement is working and should not be changed.

Virginia courts make custody decisions based on the “best interests of the child.” A judge may be reluctant to disrupt a stable living arrangement. If the children have been living primarily with your spouse for months, the judge may see that as the new normal. It can be an uphill battle to argue for a different arrangement later.

Risk 2: Financial Strain

Supporting two separate households on an income that previously supported one is difficult. If you move out, you will be responsible for your own rent, utilities, and living expenses, while potentially still being liable for the mortgage and bills at the marital home. This can place you in a weaker financial position.

Risk 3: Access to Property and Documents

Once you are out, it can be difficult to get back in, even to retrieve your personal belongings. Your spouse might become uncooperative, forcing your attorney to get involved. You also lose the ability to monitor the home. You may not know if your spouse is failing to maintain the property, which could hurt its value, or even worse, is removing or hiding other marital assets.

What Are the Potential Benefits of Moving Out?

Despite the risks, there are often compelling reasons to leave the marital home.

• De-escalation of Conflict: A high-conflict home is toxic for everyone, especially children. Moving out can lower the daily tension, stop the arguments, and create a more peaceful environment for the entire family.
• Personal Well-being: Your mental and emotional health is important. Removing yourself from a negative or hostile environment can give you the clarity and strength needed to navigate the divorce process.
• Establishing Separation: As noted, moving out creates a clear, undeniable start date for your mandatory separation period. This can prevent arguments later about when the “separation” truly began.
• Physical Safety: If there is any history or threat of domestic violence, your safety and the safety of your children is the number one priority. In this situation, you should leave immediately and contact law enforcement and an attorney to discuss a Protective Order.

Does Moving Out Constitute “Abandonment” or “Desertion” in Virginia?

This is a common fear, rooted in the fact that Virginia still has “fault-based” grounds for divorce. “Desertion” (the legal term often confused with “abandonment”) is a fault ground.

However, “desertion” means more than just physically leaving the house. To rise to the level of desertion, the person who leaves must have done so without justification and with the intent to end the marriage, while also refusing to support the family.

If you move out but continue to pay your share of the bills and support the children, it is very difficult for your spouse to successfully claim desertion. Furthermore, if you leave to escape a high-conflict or abusive situation, you may have a valid justification that defeats a desertion claim. This is a complex area of the law that requires advice from a knowledgeable attorney.

Who Has to Pay the Mortgage and Bills After One Person Leaves?

Legally, if your name is on the mortgage or a utility bill, you are still liable for that debt, regardless of where you live. A creditor can come after you if the bill is not paid.

This is often one of the first issues addressed in a divorce through a pendente lite motion. This is a request for a temporary court order that remains in effect while the divorce is pending.

A Virginia judge can issue a temporary order that specifies:

• Who must pay the mortgage
• Who must pay the utilities and other household bills
• Who will pay temporary spousal support
• Who will pay temporary child support

The person who pays the mortgage on the marital home after separation may be entitled to a credit for those payments, which is factored into the final equitable distribution.

Can My Spouse Change the Locks if I Leave?

If your name is on the title or the lease, the marital home is legally your property, too. Your spouse cannot legally “lock you out” of your own home without a court order.

However, if you have moved out and established a new residence, returning to the home without your spouse’s permission could be seen as a provocation or even trespassing, depending on the circumstances. This is a gray area where you should proceed with extreme caution and legal guidance.

If you are the one who stays, you should not change the locks unless you have been granted “exclusive possession” by a judge.

What Is a Temporary Order for “Exclusive Possession”?

Instead of one person “voluntarily” moving out, you can ask a Virginia Circuit Court to grant a pendente lite order for “exclusive possession” of the marital home. This is a court order that legally requires one spouse to move out.

These orders are not granted lightly. You must provide the judge with a compelling reason why you should be allowed to stay and your spouse should be forced to leave. These are most common in cases involving:

• Domestic violence or abuse
• A high degree of conflict that is harmful to the children
• A spouse’s substance abuse or mental health issue that endangers the family

If you are granted exclusive possession, your spouse must leave, and you are legally allowed to change the locks.

What Are the Alternatives to One Person Moving Out?

• Selling the Home: Sometimes, the best option is for both parties to move out and sell the house. This allows both people to get a fresh start and use their share of the equity to establish new homes.
• Nesting: This is an arrangement where the children stay in the marital home full-time, and the parents rotate in and out. This provides maximum stability for the children but requires a very high level of cooperation and financial resources from the parents.
• Separation Under One Roof: As discussed, this is an option but is difficult to maintain and prove in court.

Practical Steps to Take Before You Move Out

If, after consulting with an attorney, you decide that moving out is the best option, you must protect yourself.

Consult an Attorney First: This is the most important step. Do not make a move without a legal strategy.

Get a Written Agreement: If at all possible, get a temporary agreement in writing that covers custody, visitation, and who will pay which bills. This can be done through your attorneys.

Document Your Property: Take detailed photographs and videos of the contents of your home. This includes furniture, art, jewelry, and other valuables. Make a list of your separate property.

Copy All Important Documents: Make copies of everything.

• Tax returns
• Bank statements
• Mortgage documents
• Retirement account statements
• Insurance policies
• Car titles
• Social Security cards and passports

Secure Your Finances: Open a new bank account and a new post office box in your name only.

Take Your Personal Items: When you leave, take your clearly separate property, such as clothes, personal effects, and family heirlooms. Do not take items that are jointly owned, as this can look bad in court.

Charting Your New Course with Olmstead & Olmstead

Facing a divorce in Virginia, especially when a shared home and children are involved, can feel isolating and overwhelming. The decision of whether to move out of the marital home is complex and has no single right answer. At Olmstead & Olmstead, our attorneys are dedicated to assisting clients through these complex and personal transitions. We appreciate that the division of a life carries significant emotional and financial weight. We have the experience to address the sophisticated matters that arise in divorce and can assist you in developing a strategy that protects your interests and achieves a fair outcome.

Our team can provide the guidance you need to navigate the law and work toward a resolution that safeguards your future. Please contact us at 703-361-1555 to schedule a consultation.