One of the most common misconceptions is that a person will be found to have “abandoned” their home, by moving out, and that there will be a loss of rights resulting from this action. There is nothing in Michigan law that provides for a loss of rights if one moves out of the marital home. The home continues to be a marital asset and both spouses will be entitled to share in the value of the marital home, subject to other legal principles surrounding the source of the funds that were used to purchase the home.
However, there are considerations that should be made, in deciding whether to move out of your home when a divorce is being considered.
The first consideration is whether there are minor children. If there are minor children, and custody of those children is in dispute, the court may give stronger weight to award temporary custody to the parent who remains in the home. The reason for this is to provide stability for the children. For this reason, it is always preferable to have an agreement, in writing, with your spouse about the care and custody of the children before moving out. There are situations where this is impractical, such as when there are concerns for personal safety, and in those cases, one’s safety must always come first.
Another consideration is whether you and your spouse may both wish to be awarded the right to remain in the house after the divorce. Again, this has nothing to do with the award of monetary value of the house, but instead comes up if both parties will be asking the court to award physical possession of the home to them at the conclusion of the divorce. Obviously, there is only one house, so if a court has to decide who should be allowed to remain, one consideration is who has remained in the home up to that point. If there are minor children, it is likely that a court will allow the parent who will be the primary custodian of the children to remain in the house if he or she wishes. But in a case where there aren’t minor children, the scale may tip toward the person who has remained in the house.
In the best of worlds, couples should come to an agreement before one moves out, covering how the expenses for the home will be maintained, the servicing of marital debt, whether income will be shared or kept separately, and if there are children, the parenting schedule that will be followed. This allows for both parties to be able to appropriately plan, and to know what can be expected. If reaching such an agreement is not possible, it is advisable to consult with an attorney before moving out, so there is an understanding of the possible ramifications.