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Moving Out – Some Common Misconceptions


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 it is best to move out, your spouse cannot, in most cases, use this against you in a child custody dispute. If you do choose to move out and share children with your spouse, you should also prioritize protecting your relationship with the children, whether you ae the primary caretaker or the non-custodial parent. This includes exploring your options for a temporary parenting plan, and working with the other parent to determine parenting time.
  • Second, the cliché about possession being nine-tenths of the law is misplaced when it comes to the house. In most cases, the spouse who 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 marital 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 and 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 the remaining party will be awarded custody of the children. In fact, there are many cases where the primary caretaker decides 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 marital 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 the marital 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 you get the facts straight so that your legal rights can be protected.

At The Harris Law Firm, our attorneys can help you better understand property distribution in divorce, and your available options when it comes to the marital home. Contact us to speak with an attorney.