Reviewed by Itamar Levy, Esq.
Key Takeaways
- Your spouse cannot force you out of the marital home without a court order.
- That holds even if the home is in your spouse’s name alone.
- Moving out does not forfeit your custody claim.
- Moving out does not end your obligation to pay the mortgage, taxes, or utilities.
If you have been served divorce papers by your spouse, you may think it will be more comfortable if you move out. However, especially if you believe you and your spouse are able to amicably live together, leaving your family home before your divorce is finalized may not be in your best interest. Learn more about the advantages of staying and how one of the experienced divorce attorneys in Long Island at Barrows Levy PLLC can help you navigate your situation.
Am I Allowed to Stay in My Family Home During My Divorce Proceedings in New York State?
In New York state, your spouse does not have the right to force you to move out of your family home before your divorce is finalized.
It’s important to understand that protection does not stem from joint ownership, however. New York adheres to the equitable distribution of assets, rather than the community property method. As such, in New York, property acquired by a couple after they are married is not automatically considered the equal property of both spouses.
In fact, what allows you to remain in the marital home is more narrow: spouses are prohibited from removing the other from a shared marital property without a court order permitting them to do so. Additionally, your spouse cannot force you to leave even if they solely own your family home and it is not considered marital property.
Why Should I Not Move Out of My Family Home During My Divorce Proceedings?
When it comes time to make child custody settlement agreements in your divorce proceedings, the New York court may prefer the parent who stays in the family home with the child. So, if you would like joint custody of your child, it is in your best interest to remain in your family home so that you can prove to the court that you continued to care for your child.
Moving out, however, does not create a presumption against you. Domestic Relations Law § 240 mandates no prima facie right to custody for either parent, ultimately directing the court to determine custody solely based on the best interests of the child.
Also, if you move to a residence that is not suitable to raise your child, even if you claim that it is a temporary stay, the court will take this into consideration as well.
Important Cost Considerations
You should also factor in the cost associated with leaving the marital home during a divorce. Doing so does not end your responsibility to contribute to the mortgage, taxes, or utilities. Courts regularly order a spouse to continue contributing to these expenses while the case is pending.
For more information, contact a skilled Long Island child custody lawyer today.
Under What Circumstances Can I Force My Spouse to Move Out During My Divorce Proceedings?
If you are suffering a domestic abuse situation, you may file for protection from New York State. With this, a judge can issue a restraining order to remove your spouse from your family home. In other circumstances, if you can provide clear evidence to the New York court that your spouse’s move would be in the best interest of your child, they may grant your request to remove your spouse from your family home.
Domestic Relations Law § 234 lets the court in a divorce, separation, or annulment action make any direction concerning the possession of property that justice requires, either by order while the case is pending or in the final judgment.
Ultimately, this is what produces an award of exclusive occupancy, which is a ruling that one spouse may reside in the residence for a period, regardless of whose name is on the deed. This settles who sleeps in the residence, not who will end up owning the property.
Also, Family Court Act § 842(a) allows a protective order to prohibit a party from going near the family home, and such an order may be issued temporarily before a full hearing takes place.
And if you would like to move out with your child, you can have your spouse sign an agreement consenting to the move. But if they do not agree to this, you can obtain a court order for temporary physical custody of your child.
Contact Our Experienced New York Firm
If you need a Long Island lawyer who has significant experience handling family and estate planning matters, contact Barrows Levy PLLC to schedule a consultation with one of our experienced attorneys today.
