Should I Stay Or Should I Go: The Decision To Move Out During A Divorce.
Darling you got to let me know
Should I stay or should I go?
If you say that you are mine
I’ll be here till the end of time
So you got to let me know
Should I stay or should I go?
It’s always tease tease tease
You’re happy when I’m on my knees
One day is fine, and next is black
So if you want me off your back
Well come on and let me know
Should I stay or should I go?
Should I stay or should I go now?
Should I stay or should I go now?
If I go there will be trouble
And if I stay it will be double
So come on and let me know
I’m sure it was without meaning to, but the Clash addressed one of the more critical questions that comes up in my divorce consultations. My most recent consultation was with a man who was desperate to get out. He believed that his marriage had been on the path to destruction from the very beginning and, seven years later, he had finally reached the end of his rope. He and his wife were already sleeping in separate bedrooms when he came in for his consult. After some initial pleasantries and an overview of the various approaches to getting divorced, he exploded “I want to move out as soon as possible. I can’t live this way anymore!”
In most divorces, whether litigated or collaborative, who will reside where can become a central issue. What surprises some is that this issue even arises when the parties do not own the property that they reside in as a couple. This was the case with my potential client.
Initially, he had stayed because, despite the separate bedrooms and the stress between the couple, he wanted unlimited access to their now six-year-old son. However, we had also established that he had been the primary breadwinner while she worked part-time so that she could be home afternoons for their son. Therefore, our conversation went something like this:
Me: What happened?
Him: Initially, she was just making my life miserable. But, lately, she’s been impossible. I’m sure that she’s purposely picking fights with me to make me angry enough to do something stupid. I just think it will be better to share time with Ian 50/50 so he doesn’t see us fighting. Plus, I’m worried she’s going to call 911 and accuse me of domestic violence, even though I haven’t done anything!
Me: Well, here’s the thing. You can move out, but before you do there are things you need to consider.
Him: Like what? I know I want to move out and I know I am not going to change my mind.
Me: Ok, that’s good because, once you are out of the house, it can be hard to move back in.
Him: Yeah, I’m not worried about wanting to go back in the slightest.
Me: Aside from that issue, can you afford to maintain two households?
Him: Why in the hell would I need to maintain two households? Once I move out, she can be responsible for her own sh*t.
Me: Can she afford to pay all the bills at home on her part-time income? When you file your petition, the court will enter a stay order.
Him (interrupting): What does that mean?
Me: A stay order means you can’t change anything major. You are required to maintain the status quo, meaning you need to contribute to the marital household in the same fashion you did prior to filing for divorce, even if you reside elsewhere. You would need to contribute to the rent, utilities, and other household expenses the way you did while you lived there.
Him: But what if I move out before I file?
Me: Even then, it’s possible the court would look to what you folks did while you were married, and make you responsible for at least some of those expenses.
Him: That’s bullsh*t. I can’t afford to pay for two houses!
Unfortunately, this conversation occurs frequently between a family lawyer and his client, and it is difficult to advise our clients on this topic. What if, like my potential client, you cannot afford to maintain two households? In one case I litigated, the judge required the husband and wife to live together during the three years of the divorce process, despite that they were in a rental, because the husband breadwinner could not afford two homes. The relationship between the two spouses deteriorated as the continual abrasion between them worsened. The wife ended up being committed and diagnosed with bipolar disorder, in part, because of the stress of living daily with a man she now hated.
Do you wait until it’s so bad you have to ask the judge for relief? What if you draw the judge who kept my client in the home for three years with a man she hated?
But do you advise self-help? Do you advise your client to stay in a home where he is miserable (and she is miserable), making their children miserable and subjecting them to what some might call abuse (high conflict between their parents), and where the situation might become so heated that someone gets hurt? Or do you tell him to move out and risk the consequences of failing to contribute to the marital home?
And, if your client can afford two households, do you tell him to move out knowing that, if he does maintain the marital home, it could set a precedent for spousal support moving forward?
My solution is to present all possibilities to the client and to ask him to decide how to move forward. I always recommend he discusses the issue with his spouse (perhaps in a public place, without the kids present, or perhaps through me) to see if the two of them can come to an agreement, preferably without setting a precedent on the support issue.
For some, the idea of remaining in the home is too painful and they would prefer to deal with the consequences; others will stick it out to avoid setting any precedent or dealing with the potential consequences in court.
