In a divorce, every couple must at some point deal with the decision of who moves out and when. Moving out of the marital home is often a gut-wrenching, emotional decision. For many couples, the home is their most valuable asset. It is the asset that the couple typically purchased during the happier years of their marriage. It often contains years of happy memories, and can be the only home that the children have grown up in.
Thus, it is no surprise that the house, apart from the children, is the single issue that divorcing couples tend to fight about most. In fact, deciding who will move out can sometimes be such a painful issue that it sends people into a tailspin of expensive litigation. But, does it have to cause such tremendous conflict?
As with many family law issues, there are some common misconceptions when it comes to dealing with the home. By understanding your rights, you may be able to avoid unnecessary conflict, and better protect yourself and your children.
First, there is no such thing as abandonment under Colorado law. Colorado is a no fault divorce state. So, if you do decide that it is best to move out, your spouse cannot, in most cases, use this against you in a child custody dispute. However, if you do choose to move out, you must still protect your relationship with the children by insisting on regular visits, phone contact and, where possible, e-mail contact.
Second, the cliche about possession being nine-tenths of the law s misplaced when it comes to the house. In most cases, the spouse that remains in the home does not automatically have a greater legal claim to the home in the final property settlement. In Colorado, the court is required to divide all property in an equitable manner. This approach takes into account the overall division of assets, the care of younger children, and the financial resources of the parties. Possession of assets, as well as title of assets, is far, less important. In fact, in many cases, the court will order that the home be sold, and the proceeds divided in order to pay marital debts.
Third, moving out of the family home does not necessarily mean that the remaining party will be awarded custody of the children. In fact, there are many cases where the primary caretaker of the children decides that he or she must move out of the home with the children in order to protect the family from domestic violence. In fact, in a situation involving a history of domestic violence, or the threat of future domestic violence, you must always do what is necessary to protect yourself and your children; if that means fleeing from the marital home at the start of the case, that is what you must do. The court can always award either the home, or your share of the equity in the home, to you later in the divorce.
Now, having said all of this, there is no doubt that the home can be used as a tool to manipulate and create conflict in a divorce. Where you have significant assets like a home, or where you have children to protect, it is always crucial to make sure that you get the facts straight so that your legal rights can be protected.