Can I Leave My Home & Kids
Has the arguing and tension in the house reached DEFCON 5? Are you walking on egg shells and every encounter with your spouse the potential start of a civil war? Needless to say, living in the same house while planning or while going through a divorce can get interesting.
All the arguing in front of the kids can’t be healthy. Someone is going to snap and spend a night in jail. You just know it. You would leave, but you don’t want to be charged with abandonment of children. Plus, you want to stay in the home after the divorce. If you leave you aren’t you abandoning your rights to the house? Do you need a family law attorney?
To leave or not to leave. This would be the question posed by Shakespeare if he ever thought of divorcing Anne Hathaway. While it may be smart to move, or smarter to stay, you need to understand how courts view this issue.
Abandonment of Children and Spouse
The first issue to discuss is abandonment of children. Clients feel the court will punish them for abandoning their children. Abandonment is a criminal charge when you leave your child without any regards for care. You are leaving the children with your spouse. This is not abandonment. Abandonment of children is a divorce myth.
You need to be careful with visitation schedules. If you leave the kids with your spouse, don’t dig a custody hole with the judge. Living apart for several months and only seeing the children one or two days a week could lead a judge to make this temporary arrangement permanent. Judges don’t like making changes when current arrangements appear to be working. Two days a week would give the mom primary physical custody.
We typically advise clients who choose to move out to schedule at least three days of custody a week. A day of custody should include sleepovers. Three days and nights is considered joint physical custody. Anything less than three nights could give your spouse primary physical custody of the children.
Next is abandonment or desertion of a spouse. There is no Nevada law regarding abandonment or desertion of a spouse. I take that back, you have NRS 123.100, states you are not obligated to support a spouse who abandons you.
Although there is no law, cutting your wife off from the finances is not a good move. The judge will eventually order you to pay temporary spousal support and child support. The judge may not be happy with your attempts to financially strangle your spouse.
On the flip side, you need to be careful with how much you provide her while living separately. As I mentioned before, the courts like to make final rulings based on current arrangements. Talk to one of our divorce attorneys to create a prudent budget.
Abandoning the House
If you decide to leave you are not waiving any rights to the home. Regardless of whose name is on the title or mortgage. Community property is community property, whether you live in it or not. Equity in a home deemed community property will be divided equally.
Conversely, you are under no legal obligation to move. Your name does not need to be on the mortgage or lease. Spouses cannot be evicted from the marital resident. Only a family court judge has the authority to give “exclusive possession” of the home to one spouse.
Can You Afford to Move?
While you are not waiving any legal rights if you move out, it can crunch your wallet. Paying for two households is not easy. Remember, you shouldn’t stop paying all the expenses of the main household because you have a new household. There is a likely chance the court will require you to continue paying for your spouse’s living expenses. Most judges will order you to continue paying mortgages, rents, car payments, groceries and other bills.
You need to choose a home where the children can spend the night at least three times a week. Moving in with family is one of the better options for tight budgets. One of the recommended scenarios is moving into your parent’s home on a temporary basis. This way the grandparents spend time with the children and the budget is salvaged. Courts seem to approve this arrangement.
If moving out isn’t an option you need to figure out an effective way to live peacefully in the marital home. Making a spare bedroom your living quarters and maintaining an active role in your children’s lives is a possible alternative.
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