By Dale Klaus and Reube Doupé – Klaus Doupé, PA
By far, the most common question asked by new clients is whether or not they should stay or leave the marital home. This issue has far reaching practical implications for the spouses, but is not very complicated legally.
At the outset, note that Florida law allows every person the right to continue their residence. That means that the filing of a divorce does not automatically require one spouse to leave the home. That being said, the reality is that by the time a divorce is complete, one or both parties will have to find a new residence. The steps for getting from one stage to the other are where difficulties sometimes arise. These are the questions we ask our clients to help them determine the best way to handle the situation.
First, is it your goal to keep the home? Typically, a client is concerned about whether moving out of the house could be considered abandoning the home and therefore losing any right to the value of the home as a marital asset. This is a myth and is not legally accurate. A spouse’s right to a portion of the value of a home does not depend on whether or not that spouse is living in the home. Legally, that spouse could still ask the Court to keep the home themselves, but practically, once you leave the home voluntarily, there is only a small chance that you will get back in. So if you do not wish to be the one with the home at the end of the case, then it may make sense to move out before the case is over; and in doing so, you do not lose any right to share in the value of the home.
Second, is there a timesharing schedule already in place for your children? If there is already an agreement, then we try to place that agreement in writing to make it enforceable. However, if there is a custody dispute, which can occur for a number of reasons, then the parent leaving the home may get cut-off or lose access to the children. In these circumstances, it is best to get the timesharing schedule solidified before the parents separate, at least on an temporary basis.
Those are essentially the two major issues that play a role in whether one party should stay or go. Certainly, there are other factors that will come into the fray, available housing, cost of moving and replacing furniture; but those issues are usually resolved efficiently. In any event, the separation of spouses can be a major life event; and like any other major life event, it should be done with plenty of forethought and counsel.
Klaus Doupé, P.A.
225 Banyan Blvd.
Naples, Florida 34102