Divorce Myth #3* – If I File for Divorce My Spouse Needs to Move Out
There is a belief that once a divorce complaint has been filed that there needs to be a physical separation requiring one party to move out from the martial residence. That is just not the case. The filing of a divorce complaint does not automatically create an obligation for one party to move out. Putting aside the cases involving domestic violence restraining orders, parties can continue to reside together throughout the entire divorce litigation (and in some cases even after the divorce is concluded). While perhaps not an ideal situation from an emotional stand point, many times there are financial limitations that make it impossible for parties to separate until their case is resolved.
One question that gets asked repeatedly concerns changing the locks. You need to be careful with this. From a real property legal perspective, a home titled to joint names or a lease in both parties’ names give each party an equal claim to the residence. If the parties are still living together one party should not change the locks when the other party is at work or what have you. However, if there has been a true separation and the party who moved out has established their own residence then changing the locks would be appropriate but there should be at least notice given so that there are no surprises.
Another question that comes up concerns the ability of one party to remain in the marital home until the youngest child finishes a certain grade in school. The short answer is that the law does not provide any concrete formula or standard addressing such a situation. The court’s power is limited when it comes to the dissipation of the marital home- either one party retains the home (usually buying out the other party’s equitable interest in same) or the house is listed for sale. However, the parties can enter into an agreement that defers (i.e. delays) the disposition of the marital home until a future time and/or triggering event. In other words, the parties can enter into an agreement whereby one party resides in the marital home with the child and, upon high school graduation, the property would then be put on the market for sale. You have to be careful as to the language that is utilized in the agreement to account for a number of possible scenarios that could occur over time with such an arrangement.
Another question that comes up concerns prohibitions on where one party can move, especially when it comes to moving the children’s primary residence. If you are moving to somewhere within the State of New Jersey you do not need the consent of the other party absent some particular language in an agreement or court order that mandates something specific in this regard. However, if the move (typically because of the distance) impacts the parenting time schedule this could result in a court application by the other party. Parties are prohibited under the law from moving the children out of the State of New Jersey without the specific consent of the other party or a court order.
*This is the third article in a ten part series exploring the most common myths concerning divorce law in New Jersey.
All of the attorneys at Domers & Bonamassa are well versed and have years of experience addressing family law issues, no matter how complicated. Contact us today at (856) 596-2888 for a private consultation. We appear in the following counties: Burlington, Camden, Gloucester, Cumberland, Salem, Mercer, Ocean, Atlantic and Cape May. Our practice areas include: divorce, custody, parenting time, child support, alimony, domestic violence, college expenses, equitable distribution, name changes, step parent adoptions, paternity issues, child abuse and neglect, prenuptial agreements, mediation and arbitration.
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