If you’re going through a divorce, it’s quite normal for it to be a difficult emotional time. It’s even more natural to avoid your spouse while the divorce is ongoing. Seeking alternative living arrangements–from moving in with your parents to renting an apartment to outright buying a new house, can seem like attractive options. But those decisions can come with serious consequences in the settlement process. If it is at all possible, do not move out of your house during a divorce in Virginia.
A Safety Disclaimer
We’re going to lay out all the reasons you should stay in your home during divorce proceedings, along with some of the challenges that come with that decision. Please know that if you are a victim of domestic violence we absolutely understand that this is not an option for you. The safety of you and your children always come first. If you are a victim of domestic violence, call The National Domestic Violence Hotline at 1-800-799-7233 and get help.
What You Do Now Can Matter Later
When the court makes the final decisions about your divorce settlement, important issues like child custody, visitation and property division will likely be impacted by your existing living arrangements and how long they have been in place. In other words, the situation you currently abide by can set a precedent for what your life will look like post-divorce.
Now, you won’t lose ownership rights in the home you and your spouse bought together if you move out. But if you have any designs on moving back in there someday, it’s preferable to have never left.
Property Division & Your Home
Remaining in your family home is about more than just avoiding the inconvenience of moving twice (although let’s face it, who really wants to do that anyway?). The Virginia courts are not obligated to simply give you 50 percent of the house, or any other piece of property in the settlement. They are obligated to treat you fairly. The legal term for this is equitable distribution. What is equitable can often come in the eye of the beholder, and a harsh reality is that the beholder right now is not you, your lawyer, or your spouse, but a judge in Virginia circuit court.
The factors the judge will consider in equitably distributing all property, including the house, may vary. But it is certainly reasonable to presume that the court will consider who is physically living there. If you and your spouse both want the house, and they are the ones living there, the judge may lean in their favor. Equitable distribution laws require that the court award you assets in another area of the settlement–maybe you’ll get a larger share of the stock portfolio–but that may not have been the asset you really wanted.
How the Kids Could Impact Who Gets the Home
Virginia judges will be even more inclined to award the house to its current occupant if children are involved. Acting in the “best interest of the child” is the guiding principle in all decisions that impact the kids and keeping the children in a stable living situation is part of considering their best interests.
Perhaps you also want the kids to stay in the house, with a plan of securing custody and moving back. That’s possible, but perhaps the single most important reason not to move out of your house during a divorce is that this can work against you in custody decisions.
Let’s say you have a situation where both parents have reasonably good relationships with their children. You’ve living in an apartment nearby but are very much active in your children’s lives. You pick them up from school, go to their extracurricular activities and still contribute financially to their upbringing. The kids are handling the whole situation with their parents about as well as anyone can expect.
Now, a judge looks at this landscape and considers the best interests of the child. The judge might well conclude that it’s best to leave well enough alone. You have done nothing wrong under this scenario. In fact, you’ve done everything right. But the best interests of the child are deemed to be just staying the course.
So, your spouse gets the house and primary custody of the kids. You get visitation rights, and you get taken care of in other aspects of the settlement. But custody of your kids was what you really wanted. The chances might have been improved if you were still living at the house.
The issue of precedent can also apply to the financial settlement. Let’s build off the scenario above. You were still making monetary support of the house a priority. The judge may again look at this and conclude that your spouse would be unable to support the kids and the house on their own. But you have demonstrated an ability to support yourself in an apartment and still make payments. We’ve already established that your spouse getting the house and custody is in the best interest of the children. Therefore, you might also have to continue making payments to allow this to continue.
It’s all adding up to a very bad outcome on the divorce settlement. It’s worth repeating that the judge will be obligated to do whatever possible to secure an equitable outcome for you in other areas of the settlement. But it’s also worth repeating that equity is in the eye of the beholder and that beholder is the person in the black robe. The possible areas where you can be made whole are dwindling.
We won’t promise that none of these challenges will come up if you stay in the house, but we can say that your chances of getting the settlement you want are better if you don’t move out.
An Honest Look at the Challenges
We already noted one very big obstacle for some who choose to stay in the shared house, and that is domestic abuse. We must also acknowledge that Virginia divorce laws can put additional challenges in front of couples. We’re here to help you navigate these challenges and protect your interests. The most notable challenge beyond an abuse situation is that Virginia’s no-fault divorce options are limited. There is only one viable ground for a no-fault divorce and that is separation. A couple without children must be separated for at least six months to file for no-fault. Couples with children must be separated for at least a year.
Suffice it to say, separation means living in different houses. And the whole premise of this discussion is predicated on staying in the house. That leaves you with two options if you want to avoid moving out. One option is to engage in a high-stakes game of chicken with your spouse and see who blinks first and moves out–because legally, neither of you can force the other person to move. Or file on fault grounds, where the divorce can be pursued while you are under the same roof.
Virginia’s fault-based grounds for divorce require proof in court. One of these grounds is physical cruelty. But, for the sake of your own safety, staying in the house means getting the abuser out. Getting them to leave if they don’t want to will require some legal work at proving the abuse. Another fault-based ground for divorce is conviction on a felony charge. Of course, if your spouse is going to prison, you probably aren’t feeling the need to move in any case.
Finally, there are sexual improprieties, including, but not limited to, adultery, that can be used as grounds for a fault-based divorce. Perhaps this is the situation you’re in. Please be aware that filing on fault-based grounds puts those grounds in the public record. It’s possible that you may not want your children to hear why, exactly, the marriage is coming to an end.
Taking the Next Step
You deserve a living arrangement where you can be both safe and sane. At The Law Offices of Daniel J. Miller, we understand the challenges you face, now in the short-term, as well as those that will come up in the long-term if you move out. It’s our job to see the big picture, to listen to your situation and craft the single best legal strategy for your needs. We’ve been doing this work for 20 years, we’re good at it and we want to help you. Call us today at (757) 267-4949 or contact us online so we can set up an initial consultation.