A recurring theme in many divorces is the desire not to leave the marital home, even after you and your spouse have agreed to divorce. There are many reasons people give me for not wanting to leave the marital home, and I get asked this question several times per month.
Let’s explore the answer by looking at a few reasons why people question whether to leave the marital home.
So, you and your spouse are going to divorce. There is really no reason for both of you to live in the same home anymore, but a friend told you that if you leave the home, it will constitute abandonment and desertion, so you cannot leave.
While there is a grain of theoretical truth, let’s separate what is more important from what is less important. There is a huge difference between the legal grounds for divorce and the reasons for the breakup of a marriage.
In every divorce, the Court has to establish the legal grounds for that divorce. The most popular ground for divorce is a one year separation between two spouses. There are additional grounds, such as adultery, desertion and constructive desertion of the marriage, as well as extremely cruelty of treatment.
Focusing on the desertion ground, all you get out of a one year desertion is a divorce. That’s it. Nothing more.
There is an entirely different analysis regarding financial and custodial issues in a divorce case involving desertion.
For the financial issues of alimony and distributing the assets between the two of you, one factor the judge must review is what led to or contributing to the breakup and demise of the marriage. If your spouse walked out three years ago of a stable marriage due to a drug addiction, mental health reason or something more sinister, that could be terms desertion. However, where the two of you have been having marital problems for months or years and one of you cannot take the stress of the marriage and just has to get out, the act of leaving the home is likely not the cause of the breakup of the marriage.
I see this a lot with adultery, as well. Far too often, the marriage is long over and then one spouse has an affair. By and large, most judges could care less, as the affair is not the cause of the demise of the marriage.
A visit to an attorney can save you so much heartache and could allow you to leave a stressful situation without a great deal of stress.
Sometimes, people do not want to leave the house because they fear they will lose rights with regard to their children. I hear far too often that if I leave the house, I may never see my child again. This is the scenario where you really need to rely on the advice of a competent experienced divorce attorney, because the unfortunate answer to this question is “it depends.” I hate that answer, and so should you. But it’s the truth. Since every situation is so individualized, a divorce attorney really needs to weigh all of the facts closely before giving you the best advice.
In Howard County, it is highly unlikely you will be able to get a divorce if you and your spouse are still living together. Often, you and your spouse will agree to the divorce, but the two of you cannot get from point A to point B in the most effective manner possible. An experienced Howard County divorce attorney will be able to give you the advice you need to take the path that should leave to a successful resolution. Just remember that it takes two to tango, and if your spouse follows a different path, you could wind up in front of a judge at a divorce trial. Not ideal, but as I always say, some cases do need to be tried by the judge.
