There is no shortage of myths about divorce. People believe there is a magic age, usually 14 or 15 when children can decide which parent they can live with (Nope. They can only decide when they turn 18), or that you have to be married for 10 years before the court will award alimony. But perhaps the most pervasive, is abandonment. Abandonment is the theory that a person will lose rights to their children or the marital home if they move out of the house before the divorce is final.
Nearly every week, I am approached with questions about abandonment. The myth is so universal people don’t even ask if it exists, but make a factual statement such as, “I’d like to move out of the house, but I’d be accused of abandonment.”
Not the case.
Michigan has never had a law on abandonment. Forty years ago, courts would occasionally use the theory of abandonment when deciding custody issues or making a decision regarding who is awarded the marital home, but people have never automatically lost rights to their children or property by moving out of the house. Incredibly, some attorneys even perpetuate this myth.
When asked about divorce myths, I often turn the question back on the questioner. You probably know many divorced people. Many of those separated before a divorce case was filed with the court. Do you know a single person who lost custody of their children or lost their equity in the marital home as a direct result of moving out? Of course not.
That being said, there are strategic reasons to remain in the home. If you want full custody of the children, and you move out without a parenting time schedule in place, that could be interpreted as a sign that you do not believe it is in the best interests of the children for you to have custody. And if you want to keep the marital home, and you move out, it tends to be easier to award the home to your spouse simply because they are already in the house. But you would still be entitled to every penny of your share of the equity in the home.
Divorce is almost always stressful, and it’s often in the best interest of the parties and the children to separate before the divorce is final. In that event, I strongly recommend having a parenting time schedule in place before moving out of the house. If you move out, and follow a parenting time schedule that is agreeable to you, it would be very difficult for the other parent to argue for a schedule that is drastically different from the schedule you are following.
Important – If there is domestic violence and/or if you have any concerns for your safety or the safety of your children, get out of the house and immediately contact an attorney. If your safety is at risk, but you think the children’s safety is not at risk (often domestic violence is directed toward the spouse, and not the children), then you should get out of the house, while leaving the children, and immediately contact an attorney. The attorney can file emergency motions with the court to protect you and the children, and to request that your spouse removed from the home.
There are no shortage of people wiling to give you advice about your divorce. Common sense is always your best friend when receive this advice. Remember, if you receive advice from a friend, co-worker, bartender, or hairdresser, you should always check with an experienced, full-time family law attorney before acting on that advice.