Cincinnati Family Law & Divorce Blog: If I Move Out, Am I Abandoning my Spouse or Children?
A question that comes up frequently when a person is considering ending his or her marriage is “How will moving out affect me?” Your friends or family may have warned you that moving out will be considered “abandonment” and that you need to stay in the house to avoid the court finding that you abandoned your spouse or children. In Ohio, a court is not going to consider abandonment. However, moving out of the marital home could have significant ramifications for child custody, payment of support, and your ability to move back to the house.
If you choose to move out, you are not waiving your right to any marital equity in the home or the right to seek an award of possession from the court when the marital assets are divided. Regardless of who lives in the home, both spouses will be entitled to share in any marital equity in the home. If there is a dispute as to who will retain the residence at the conclusion of the divorce, the court may consider whether one spouse vacated the residence voluntarily.
If you have children, moving out can affect your rights as to child custody and your obligation to pay child support. When the spouses are living together, the court will not issue temporary orders for child custody, parenting time, child support, or spousal support. However, once one spouse moves out and a divorce is initiated, the court can issue these temporary orders. (Read here for more information on temporary orders.)
When deciding temporary custody, the court will often look to which parent has remained in the marital home. The court usually focuses on maintaining as much as of the status quo as possible for the children. As such, the parent remaining in the residence, may be designated the residential parent on a temporary basis. The parent who vacated the residence, would then be awarded parenting time with the children, but that parenting time may be less or different than what the parent would have wanted.
Additionally, if you move out of the marital home, your spouse can ask the court for temporary orders for child support and spousal support. This is not available when the spouses are still living together, although the court can issue an order for division and payment of household expenses. If your spouse has been named the residential parent in a temporary order, you could have an obligation to pay child support even if you and your spouse are exercising equal parenting time with your children.
Furthermore, if you move out, the court may issue an order granting your spouse exclusive occupancy of the marital home. This varies by county, but in some counties if you vacate the marital residence for more than 30 days, your spouse can obtain an order for exclusive occupancy on an ex parte basis (i.e., without a hearing), prohibiting you from returning to the residence. In other counties, the court will set a hearing and will require your spouse to establish certain elements before granting exclusive occupancy. (Read here for more information on orders for exclusive occupancy.)
Despite the general consequences discussed above, there are many factors that could impact a court’s treatment of your decision to leave the marital residence. For example, if there is a safety or domestic violence situation, the court may treat the matter differently. Additionally, if you and your spouse reach an agreement about your decision to move out, the court may consider that agreement in issuing any temporary orders. Your attorney can help you come up with a temporary arrangement and make sure that your rights are protected, even if you do move out. In the best of circumstances, if it seems reasonable that there is a separation, an agreement will be reached between the spouses, perhaps in writing, which would eliminate any of the risks discussed in this blog. Furthermore, if it is highly likely there will be cooperation between the parties, without one party wishing to take advantage of a separation, these issues don’t exist.
If moving out of the marital home results in you living in a different county or state, this could impact the jurisdictional issues regarding where divorce or dissolution action can be filed. (Read here for more information on jurisdiction and venue.)
When facing the decision of whether you should move out of the marital home, there are many things to consider, but the term “abandonment” is not one of them. Your attorney can help you determine what impact your actions may have and come up with a plan to protect your rights as you end your marriage.