Leaving The Marital Home

An Event of Significance

Leaving the home may be willingly planned or it may be begrudgingly forced. Either way, it almost always symbolizes separation and possible finality. For the person departing, it commences a new routine of day to day living, a change not always welcomed. It can signal anything from “freedom” to loneliness, but it always signals something. For the person staying, it may signal the same things in a slightly different context. It is a decision with more than just emotional consequences. It can have tactical and strategic significance in a divorce. It is not a decision to be made without planning unless issues of personal safety override any “thoughtful” planning. Some of the concerns:


    1. If he leaves, can I change the locks?
    2. If I leave, can I come back?
    3. Who is going to pay the mortgage?
    4. Can I keep him out?                                          
    5. Is it going to be considered abandonment? And what is the result of being “accused of abandonment”?
    6. Do I give up any rights?
    7. Can I still get custody of the kids?
    8. If I’m going to leave, what can I take with me?                                                 
    9. Who will cut the lawn?
    10. What about gas and electric?                                       
    11. Why not just sell the house?
    12. He just won’t leave, and I know he’s out screwing her every night, so why can’t you make him go?
    13. When I go, she can pay the damn mortgage. She’ll have to get off her butt and get a job.
    14. You want the marriage over-you go.
    15. Should I take the kids?                                             
    16. He won’t budge.
    17. He’s a real wedge-ass and he wouldn’t know what to do if he left.
    18. But I’ll be damned if he’ll force me out. Two can play this game.                                                   See "Removing the Non-Titled Spouse From The Marital Home"
                                                  (Authored by Network Participant Leon Berg, Esq.)


Immediate Financial Concerns

  1. No "Emergency Hearing".   Unless there is an agreement on who is to pay what, it can take over two months to have a hearing in Court to try and force a resolution.
  2. If no one pays the mortgage, the mortgage company does not care about what is "fair". They just want their money. If not, they will begin foreclosure proceedings. (Usually after 90 days of non-payment).
  3. Make this decision in the context of the other financial issues you face. (See Preparing Financially).

Some Thoughts

Save money in a separate account during your marriage. If you haven’t, before you leave the home, take money from jointly titled funds, borrow from family or friends, sell marital assets or raise money in other ways for your self protection. You will need money to live on and money for an attorney’s retainer. There is not much pro bono assistance out there. Plenty of advice to help you do it yourself, but not much hands on assistance in your actual divorce.

Strategic Concerns


Leaving without an agreement and without the children will definitely have an effect on any custody dispute. Leaving children under the care of your dearly departed is an acknowledgement of sorts that you consider the children to be in good enough hands that you do not need to take them with you. It may or may not be true, but expect it to be thrown at you if there is a later disagreement about the children, and you try to belatedly object to your spouse’s parenting abilities.


Leaving the home usually will have very little impact on the outcome of the property issues in your case. The concern that “I will be charged with desertion” is usually a fear blown way out of proportion. It takes an extreme set of circumstances, or an extreme judge, to cause allegations of “fault” to significantly alter a financial decision that may impact on the abilities of each divorcing spouse to survive.

Can A Court Force Anyone To Leave?

No Court can force a titled owner of the home to leave. This is the source of the “squatter’s” power. There are people who just will not leave. They may be emotionally incapable of leaving the net of security which the home symbolizes. They may not see it that way, but it may be that way. They can be fornicating in the den every afternoon, and the court still can’t order them to leave. It is not a question of right vs. wrong. Often it is just a question of relative tenacity. He or she can put a lock on their bedroom door. He or she can remove the doors to prevent and counter the locks. He can super-glue his baseball memorabilia collection in his closet. She can stop cooking dinner, stop washing the clothes, stop having sex. Start having voracious and unwanted sex or work out an alternate week schedule for all of the above to confuse the issue. Or someone can decide to leave and bear the consequences. It’s all a question of which alternative is the worst. That’s the one you want to avoid. You can leave. You can stay. Or you can do something in between. What is the best course of action? Like everything else, it depends.

Are There “In-Betweens” And “Better” Alternatives?

Work Things Out

Who should leave? What makes the most economic sense? How much will it cost each of us to live? Do we each need to cut back on this expense or that expense to make it bearable? Who needs which furniture, and towels, and spoons and TV’s. How can we make sure each of us has enough money? Let’s put all of this in writing. And I’ll put in there that your leaving is something we agreed to do, so no one can ever accuse you of abandonment. The kids? Well, let’s go to Dr. P. and get some advice on how to tell them about the divorce, to let him know what we are doing, and ask him if he’ll consult with us if any problems come up. Maybe he can make some recommendations. And let’s pull all the financial records together, so we each have a copy.

Get Some Help Negotiating

If sitting down is not an option, maybe there is someone you both trust enough to sit down and try the same conversation in their presence. Sometimes, the restrained civility brought about by the presence of a third party can carry the conversation further toward an agreeable resolution.

Stay In the House Together 


  1. You can negotiate and agree upon the terms of your divorce.
  2. You can work out the terms of a separation without addressing all of the issues in the divorce.
  3. You can stay and try to drive your spouse crazy.
  4. You can stay and “Outlast” your spouse.
  5. You can each have “visitation” with the house.
  6. You can agree to sell the house.
  7. You can agree to rent the house and each of you rent elsewhere.
  8. You can negotiate a temporary truce and stay in the house until there is an agreement as to a and/or b above.


The WORST idea-Man Sets Fire to House!

Some Humor To Lighten the Load!

A woman gets home, screeching her car to a halt in the driveway and runs into the house. Slamming the door behind her, she shouts at the top of her lungs, “Honey, I won the lottery”. Her Husband says “Ohmigod”…”What should I pack, beach stuff or mountain? His Wife yells back, “It doesn’t matter…just get out.”

                                  Auntie Em...Hate you, hate Kansas, taking the dog, Dorothy.”

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