Understanding the Legal Landscape of Moving Out During Divorce

A change in one’s living situation is often part of divorce proceedings. If you and your partner separate, what does moving out during divorce proceedings mean for each of you? Discover the legal implications of one spouse moving out before the marriage officially dissolves. 

The legal team at Lincoln & Wenk, PLLC, explains everything you need to know in this in-depth guide. Contact our office if you need an experienced divorce lawyer in Phoenix to guide you through this complicated legal process. 

How Arizona Law Views Moving Out During Divorce

Arizona is a no-fault divorce state, meaning that you can divorce without any grounds that your partner did something specific that led to the breakdown of the marriage. Divorcing spouses can separate before the marriage officially ends in no-fault states. In other words, you or your soon-to-be ex can move out of the home you once shared without it causing any significant legal problems. 

Move Out Without Punishment From a Judge

You can move out of your shared residence and you won’t face punishment for it in family court. People tend to assume that moving out before finalizing a divorce is seen as abandoning their family. However, a judge won’t punish you for moving into another home during this process. 

You’ll retain all of your legal rights regarding any property you own or children you share with your spouse. Along with your lawyers, you and your partner will need to figure out a co-parenting plan and split your marital assets, such as property. This is a normal part of the process, and you won’t face any negative consequences because you decide to move before the marriage legally ends. 

Your Responsibilities Remain the Same After Moving Out

Many married couples have joint assets, including property. If both your names feature on your house’s deed or lease agreement, you remain responsible for that part of that asset. Moving out during divorce proceedings doesn’t mean you no longer have to maintain the property and cover its expenses. 

As long as you’re a shared owner or renter, you have a legal obligation to pay for expenses like:

• Monthly mortgage
• Rent
• Homeowner’s or renter’s insurance
• Property taxes
• Homeowners association fees

Be mindful of your financial responsibilities in the lead-up to finalizing your divorce. The right time to move out of your shared home and into another is when you can afford the expenses surrounding both properties. 

How Moving Out During Divorce Proceedings Impacts Child Custody

If you have children living in the home you once shared with your former spouse, moving out amid the divorce could have some family law formalities you need to work through. This primarily involves your custody arrangement and child support. An experienced family law and divorce attorney can work with you as the court orders certain arrangements between you and your former partner. 

You Must Create a Schedule for Parenting Time

Say you move out of your shared home before your divorce is final. How often will you be able to see your children? Judges typically give a custody advantage to the parent remaining in the family home since kids of a certain age are used to their home and surroundings. 

This doesn’t mean that moving out during divorce keeps you from seeing your kids at all. You and your former partner must agree to a schedule that allows you both to spend time with the children as long as it’s good for their well-being. 

A Judge Can Order Support Payments 

It’s possible that you’ll have to pay child or spousal support to your ex, depending on your custody arrangement and financial standing. For example, if you move out and the children spend the majority of their time living with your ex-spouse, a judge could rule you need to pay for their care. Spousal support may also become an issue if divorce and division of assets greatly impact your ex’s finances. 

The Residence of Both Parents Matters

Moving out during divorce proceedings becomes a bit more complicated if you have young children. Say you move out of your family home and want to buy property in your name only. With children under the age of 18, you have to consider several factors, including:

• How long they’ve been in their current home
• The district where they attend school
• Their age

If you have children who are too young to remember sharing a home, you moving out should not cause any issues.

You and your former partner must decide if you want to relocate the children to a new area or keep them in their current residence. This decision may boil down to the children’s education, friends, and well-being. 

A judge could rule that the parent who is the primary caretaker should stay in the current home with the children for a certain period of time. Both parents could continue to own the property and have the absent parent continue to pay their half of property-related expenses. Another option is for the parent remaining in the house to buy out their ex’s share. 

How Does a Protection Order Impact Moving Out During Divorce Proceedings?

What happens if you feel unsafe sharing a space with your spouse amid your divorce? Arizona law allows you to file for an Order of Protection. Individuals may apply for a protection order if they’re victims of domestic violence and a partner threatens their physical safety and well-being. 

Once a judge grants the order, your former spouse has no choice but to move out since you will have exclusive use and possession of the property. Police officers will serve an individual with the order and remain on the property while that person gathers their personal items. 

Having an Order of Protection in place not only forces a dangerous partner to move out, but it also prohibits them from having contact with you. Violating this order can lead to arrest and misdemeanor charges. 

Can You File for a Temporary Order?

Moving out during divorce proceedings is typically voluntary. If you have no grounds to prove that your partner is a threat to your safety, the only other way to have them move out is by filing a motion for a temporary order. 

If a court grants you this order, you will receive exclusive use and possession of the home. In many cases, the spouse being served will need to vacate the house by a certain date. You can file for a temporary order if you or your spouse refuse to leave the home, although it can take several months to schedule a hearing, which may delay your divorce. 

Can You Change the Locks on the Property?

The issue of changing the locks after moving out during divorce proceedings has some caveats. If one spouse voluntarily leaves, but their name remains on the home loan or lease agreement, they still have a legal right to property ownership. The remaining spouse should wait to change the locks until they notify their former partner and receive written consent. 

Should a judge grant an Order of Protection, you can temporarily change the locks for your safety. If you are the sole owner of the property, you have the legal right to change the locks as you please. 

The Legalities of Dividing or Selling a Property Following a Divorce

When either party resorts to moving out during divorce proceedings, splitting their assets, including their shared property, becomes a major topic of interest. Arizona is a community property state, meaning that the following acquired assets legally belong to both partners during their marriage:

• Salary
• Retirement investments
• Rental income

If you and your partner decide to sell the home you previously shared, you will split the earnings from the sale. If you move out and your ex keeps the house in the divorce, you can acquire fair compensation in the form of other marital assets. This could be in the form of stocks and investments, bank account values, cars, or other properties you own. 

The total assets you share must be able to cover your portion of the property for a fair division. Otherwise, you will need to sell the house if you can’t come to an agreement on which assets each spouse receives. 

Much of the property and valuables split in a divorce are subject to community property laws. You do receive separate property if you acquire it through inheritance or a gift. 

Contact Lincoln & Wenk, PLLC, for a Legal Consultation

As a no-fault divorce state, Arizona law is fairly lenient when it comes to moving out during divorce proceedings. Know your rights and navigate this process with the help of a trusted divorce lawyer. Whether you want to move out or sell your house during a divorce, the team at Lincoln & Wenk, PLLC, can advise you and help you understand the legalities. 

We have offices in Phoenix, Peoria, and Goodyear, and our staff is happy to schedule a consultation with you. Contact us at (623) 294-2464 to learn more.