Can I leave the family residence?

Many people ask if they can leave the family residence prior to settlement or trial of their case. People are often concerned that if they vacate they lose some interest in the property. The reality is that a person does not lose property rights if they move out prior to disposition. It is true that if one moves out, and leaves valuable possessions, they may never see them again, right or wrong. I always advise people to take anything they want or believe is valuable and subject to later division.

Because of domestic violence, there could not be a detriment to moving out when it comes to property rights. If a home is community property and a party moves out, their equity continues to build just like the joint tenant. Not paying the mortgage also does not affect ones property interest. While it may lead to financial claims for reimbursements of sorts, or an order to sell the property (if in jeopardy), it does not change a party's community interest.

If there are minor children involved, it is most responsible to establish a parenting plan prior to moving out and in order to avoid chaos. During this period custody can be tricky and upsetting for all parties. If it is possible to sit down with a counselor, or anyone who can facilitate a reasonable agreement for custody, even if just temporary, the children will be much less stressed and caught in the chaos created by divorce.

Often people ask me if they will have to appear in Court. The reality is that parties only have to appear in family court if they cannot make timely agreements. At some point the Court does look to push cases along and if they are stale for 5 years the Court can dismiss it. Going to Court while stressful is a quick process that often renders an instant result.

Agreeing to a global settlement, or going to trial, is how divorce or paternity cases end. Until this happens the Court can always get involved and make appropriate orders especially as it pertains to preserving and protecting the community estate.


Written by attorney Alexandra Rachel Lavinsky | Jul 6, 2013