5 Legal Risks of Moving Out During Separation (and how to protect yourself)

A guy asks me whether he should move out to give his wife space at least a few times a week… It’s one of the most common questions I hear from guys Inside the Haven.

     Turns out, this simple question has a surprisingly complex answer.

     During my research, I read an entire book (this one, pretty good read) and 30+ articles from lawyers, counselors and other professionals in the field who deal with this question every day.  The best way I can summarize my findings would be this:

A lawyer will tell you to stay in the marital home.
A counselor will tell you to move out.

     The right choice for YOU will largely depend on your own personal priorities and circumstances.  My goal in this two-part series is to help you make an informed decision.

  • In Part 1 (this article), we’ll look at the risks of moving out and how to prepare for them.
  • In Part 2 (Should You Move Out to Give Your Wife Space?) we’ll look at the benefits of moving out, if it's better for your marriage, and get a clearly defined answer to the question, should you move out to give your wife space. Plus we'll talk about what to do if you've already moved out and regret it.

     I’ll tell you this up front – moving out should never be an impulsive or emotional decision, or a decision made just to get your wife back.

     Moving out is a decision about what’s best for you and your family, both now and in the future, and it should be made considering both reconciliation and divorce as possible outcomes.

Here Are the 5 Areas Where Moving Out Can Come Back to Bite You

There is a reason that most divorce attorneys will tell you to stay in the marital home as long as possible.  Moving out can have big consequences in your divorce, which I've categorized in 5 key areas, seen to your right.

     The good news is that if you plan ahead and do things right, you can protect yourself from a lot of these risks.  As you continue reading, we’re going to look at each of these areas of risk, and what you need to do to safeguard yourself.

Disclaimer: I’m not a lawyer, and this guide is not meant to replace advice from a legal professional.  I’m just a guy who’s done a lot of research and seen a lot of men go through separation and divorce.

1. Grounds for Divorce

There are currently 17 “true” no-fault states in the US (see them here).  These are the states that only grant no fault divorces based on irreconcilable differences, even if just one spouse claims these differences. 

     While the remaining 33 states do allow for no-fault divorces, they also allow at-fault divorces where one spouse can claim grounds for divorce.  In these states, you can get a big edge if you prove that your spouse gave you grounds for divorce.

     If you live in one of the 33 fault ground divorce states, then you need to make sure that your spouse can’t claim desertion of the marriage when you move out.

     Desertion of the marriage is when one spouse leaves the marital home against the other’s will.  For example, if you move out even though your wife doesn’t want you to, or vice versa, that could potentially be used as grounds for divorce.

     As long as your wife has asked you to move out, or you both agree that one of you should move out, then she cannot claim desertion of the marriage.

What About Marital Misconduct?

     You can still accuse your spouse of marital misconduct in a no fault divorce, and it can make a big difference in the outcome of the divorce.

     Marital misconduct is when one spouse’s choices or behaviors significantly damaged the marriage, even if they didn't directly lead to divorce.

     According to Cornell's Legal Information Institute, the five types of marital misconduct are:

  • Substance abuse or addiction, i.e. ongoing alcoholism or drug addiction
  • Infidelity, I don’t know for sure if emotional affairs count, but I suspect if you can prove it then it does. Obviously physical affairs are easier to prove.
  • Domestic violence
  • Inhuman or cruel treatment, aka. emotional abuse
  • Economic fault, which in layman’s terms means doing something shady or illegal with shared finances or assets

     Note that the burden of proof for marital misconduct is on the accuser. If your wife did any of the above and you believe it contributed to the failure of the marriage, it’s your job to prove it.

Side Note: The five types of marital misconduct are all grounds for divorce, but not all grounds for divorce are marital misconduct. For example, long-term imprisonment or hiding impotence that you knew about before the marriage are both grounds for divorce that are not marital misconduct.

     I won’t go in-depth on marital misconduct because it is not directly affected by moving out, which is the topic of this article.

     The way this can affect your decision to move out is if your wife is guilty of marital misconduct.  In that case, you’ll want to get proof before you leave the marital home.  For example, it’s easier to get proof of her affair while you still live together.

     Marital misconduct is a sticky and often gray area of divorce law, making the help of an attorney extra critical if you believe it will play a part in your divorce.

To Do:

  • Find out if you live in a true no fault state or not.
  • If not, make sure you and your wife agree that you should move out.  Ideally, have some kind of proof or record (even if just a text or email).
  • If you plan to accuse your wife of marital misconduct, gather proof while you're still living in the home.

2. Child Custody

Without a doubt, child custody is where moving out can have the biggest consequences.  There are a lot of things you have to do right if you want to continue seeing your kids as much as you know you should after you move out.

     You will sometimes hear child custody horror stories about a dad who moved out before divorce was filed…

Even though Dad's wife promised he could see the kids as much as he wanted after he moved out, he didn’t get it in writing, and she made it hard to get time with them. He was shocked when she told the judge that he abandoned the kids - even though SHE wanted him to leave, and SHE restricted his time with them.  Dad is put on the defense, and the judge ends up trusting mom’s story more.  Dad was a perfectly decent father, but now he's stuck with no custody and limited visitation until his kids are 18.

     So how do you prevent that from being your story?

     When it comes to child custody, a judge is always going to prioritize what is best for the kids, and what has already worked well for the kids.  Judges like to keep as close to the status quo as possible, while still ensuring kids have both a mother and father present in their lives (assuming they believe both parents are competent caretakers).   For kids, judges prioritize stability, consistency, provision and education.

     This is where divorce can get really nasty, because if one spouse can show the other to be an incompetent caretaker, the court may give preferential treatment to the more competent spouse.

     If you want equal custody after you move out, your new residence should be:

  • Safe for childcare, both inside and outside the home.  This means you live in a safe neighborhood, on a quiet street, in a safe-feeling apartment building if applicable.
  • Plenty of living space.  A judge won’t want three kids spending the night in your one-bedroom studio or your parents’ basement.
  • Near the marital home.  A judge doesn’t want to subject children to hours of commute every week between mom and dad’s house.
  • In the same school district.  Changing schools is something a judge will always avoid.

     Usually, a judge will keep the marital home as your kids’ primary residence during the divorce, even if they plan for the kids to live with the moved-out spouse after.  This is a natural disadvantage for you if you move out, because judges also like to keep the status quo; they figure if it ain’t broke, don’t fix it.

     This is why temporary parenting agreements during divorce often become permanent afterwards.  If your kids are used to being home with your wife during the week and with you on weekends, then a judge could decide to make that the permanent parenting agreement simply because that’s what the kids are used to.

     This is also why I do not recommend moving out until you have some kind of parenting agreement in writing.  It could be as simple as an email between you and your wife showing you both agree who gets the kids when.  Ideally, it is an official parenting agreement made with the help of your lawyer and submitted to the court as a temporary order.

To Do:

     To avoid being another divorced dad horror story, do these 5 things:

  • Talk to a lawyer before you do anything. If you have kids, it’s not worth risking your relationship with them.
  • Create a written parenting agreement between you and your wife. If you want it to be temporary, it’s probably worth writing out a permanent parenting agreement before you leave too.
  • Choose your new residence wisely, according to the criteria listed above.
  • Prove that you can work with and communicate with your wife. The more cordial you keep your relationship with your wife during this divorce, the better for your kids.
  • Be the best father you can be and do your best to protect your kids from the divorce.

     With all of that being said, in MOST cases moving out will not have a significant impact on your child custody case as long as you do things right. Judges are not evil, and their first concern is what’s best for the kids. They know that a stable relationship with both mother and father is important.

3. Division of Property

Despite the divorce stereotype where the husband gets screwed out of money and marital property, the goal of the court is to fairly divide all marital assets.  The trick here is that fairly and equally are not the same thing.

     Still, moving out by itself shouldn’t really change anything when it comes to division of property. You're entitled to your fair share of marital property whether you are in the home or out.

     Even if your name isn't on the house or car, anything that was acquired during the marriage is usually considered marital property and therefore must be divided fairly during divorce.

     What about who gets the marital home?

     Even though there’s no law that says this, the spouse who stays in the house during the divorce keeps the house after the divorce the vast majority of the time.  However, if your wife gets the house, you’ll be compensated, e.g. your wife may keep the paid-off marital home, but you might get the joint investments.  Or maybe you and your wife will agree to sell the house and split the difference.

     However, there is one big warning to remember here:

     Once you move out, you have no control over what happens inside the home, or the upkeep of the home.  In the worst case, this means your wife can destroy or lose documents, property, and even the home itself.

To Do:

     How do you prevent this worst-case scenario?

  • Make a written inventory of all major shared property, from house to cars to furniture and computers.
  • Take a video of every room and the outside of the home.  If you can’t get video, get pictures. This will help you remember what was in each room and what condition it was in.
  • Make copies of ALL important documents.  Tax returns, bank statements, credit card statements, both spouse’s pay stubs, partnership agreements, property deeds, titles, etc. This is something you’ll have to do eventually in the divorce anyway, so you’re saving time, money and sanity by doing this now.

     Doing these will minimize your chances of property-related problems after you move out.  
Keep in mind – if you and your wife plan to sell the marital home and you’re not confident that she will keep the house in tip top shape, it may be worth sticking around for no other reason than to protect the value of your joint investment.

4. Finances

No matter how sparsely you live away from the marital home – even if you move in with a friend or family member – paying for two people living separately is always more expensive than paying for two people living under one roof.

     Unless you have a ton of excess income, both you and your wife will be taking on a lower standard of living once someone moves out.  After reviewing your finances, it is very possible that you simply cannot afford to live separately right now.

     It’s unfair, but courts generally assume men are better at providing for themselves than women, so if you’re NOT the breadwinner, you’re going to be at a disadvantage here compared to if the shoe was on the other foot.

     Some separated couples will choose to setup individual bank accounts, but it may be best to wait until all finances have been accounted for before you enable your wife to hide money from you.  I have seen multiple cases where a wife lied about money she’d been hiding and the husband was never able to get compensation because he had no proof.  It doesn’t happen often, but you just never know.

To Do:

     The #1 thing to do before you move out is plan a budget.  This is true no matter who moves out. Be aware that whatever budget you plan now will probably be taken into consideration when deciding who gets what after the divorce, so think ahead.

     Besides budgeting, what you need to do here depends whether you are the breadwinner or not.

  • If you are the breadwinner, you will likely be expected to continue paying for all the things you paid for before… Mortgage, utilities, credit card, food, other living expenses. You will eventually need to provide your spouse with proof of income.
  • If you are NOT the breadwinner, you should make sure that you and your wife have set aside several months’ worth of living expenses for you.  It is also very important that you have copies of your wife’s paystubs, as well as any other financial paperwork you can get proving your wife’s income and assets from any businesses she might have.

5. Spousal Mischief

“She would never do that!”

     Those are the famous last words of many a man, often spoken right before his wife shocks him with how low she will stoop to ruin his life during and after the divorce.

     Spousal mischief is a term that lawyers use to describe underhanded things your wife might do to get an edge in the divorce or to simply make your life hell.

     A few common examples would be…

  • Hiding money in a private account that you have no way of getting access to.  You know there is money missing, but you can’t prove she took it.
  • Spending excess money.  This could be by running up the utilities, going on shopping sprees, frequenting local bars and running up huge tabs… I’ve even seen cases where the wife opened and maxed out multiple joint credit cards without the husband knowing about it until it was too late.
  • Destroying important documents.  Best case scenario, you can get the documents back, but it adds extra hours and dollars to your divorce case.  Worst case scenario, you never get those documents back and who knows what that could lead to.
  • Damaging the house or other jointly owned property.  Technically this is illegal and she can be held liable, but it’s a slippery area when you can’t prove her motives.
  • Sabotaging your relationship with the kids.  This is surprisingly common… Husband moves out after his wife promises equal custody, but then she keeps him from seeing the kids and uses that decreased time with them as reason for her getting full custody (even though she was the reason he couldn’t see them).

     Many of these toe the line of legality, but they are MUCH easier to get away with when your wife is left alone in the marital home.  I’ve seen multiple real-life cases of each and every one of the examples listed above. None of these men ever thought their wife could be so cruel, but divorce has a way of bringing out the worst in people.

     If you anticipate an amicable divorce, then moving out or staying probably won’t have much effect on your case.  But, if you have even an inkling that your wife might try any funny business, BE CAREFUL!

     A good rule of thumb is that the further away your wife has drifted from the marriage, the more likely she is to commit spousal mischief during the divorce.  A wife who’s having an affair or high-level midlife crisis is much more likely to lie, cheat and steal than a wife who is simply tired of trying to fix the same ol’ problems.

     There isn't anything you need to do for this area.  If you've done everything else right and you've followed the bonus pre-move out checklist that goes with this post, you’ll be fairly well protected against spousal mischief.  Even still, if something in your gut is telling you that your wife is no longer the same trustworthy woman you married, be on the lookout.  You never know what she might try.

What If You've Already Moved Out?
Are There Any Benefits to Moving Out?
Is Moving Out Better For Your Marriage?

     Remember, this is only Part 1 of a two-part series! We will answer all of the above questions and more in Part 2, which comes with an additional bonus guide about alternatives to moving out.

Read Part 2 --> Should You Move Out to Give Her Space?

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