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Should I leave my house during the divorce process

Bellflower, CA |
Filed under: Divorce

I am getting a divorce and I have been told by my paralegal not to leave the house. What is the reason for this. Because my soon to be ex wife wants me out.

Attorney Answers 2

Posted

The person who occupies the family house, during a marital dissolution, is determined by the parties' agreement or by the court. Here's a few suggestions:

1. Look to the safety of your wife and you, first. If your (or her) remaining at the house poses a threat to either of your safety, take steps to avoid that threat, immediately. You might need a restraining order, or one of you can simply move out. Safety is the paramount concern.

2. Either or both of you can ask the court for an order that one or the other have possession of the house, during the dissolution. The process starts with the filing of an Order to Show Cause (OSC). A family law attorney can handle it for you, but you can usually get help on the local court's website or at the courthouse. Inasmuch as your question indicates that you are in Bellflower, you can check the self-help section of the website at www.lasuperiorcourt.org.

3. Get legal advice from an attorney. I cannot tell you how many times my clients have had to spend a great deal of time and money to correct the halfway good advice of well-meaning paralegals. Paralegals are not entitled to give non-attorneys legal advice or prepare court papers for non-attorneys.

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Posted

There is never an easy answer to this question, and I don't know why your paralegal told you not to leave. Paralegals are not attorneys and aren't allowed to give you legal advice, so I'm assuming the advice was personal rather than legal. You can't be forced to leave your home unless your spouse obtains a kick out order and gets exclusive use of the residence (which, in general, she can do only if there is domestic violence against her by you). But there are other factors to consider, and you need to weigh these before making your decision to stay or leave:

Reasons to Stay in Family Residence

Leverage in the settlement. If she wants you out, she may reach an agreement faster.
You want to receive the house in the divorce settlement, and believe you won't get it if you move out (not necessarily true, by the way, as there is no legal basis for awarding property to the spouse who has lived in the residence since separation).
You can't afford a separate residence.
You operate a business from your home.
You don't want to lose the tax deductions for mortgage interest and property taxes.

Reasons to Move Out of Residence

You are the spouse who will pay support, and if your spouse is living in the house, the tax deductions she will have as a result will actually lower your temporary spousal support obligation to her, and likely lead to a lower final support order.
There is no mortgage or the mortgage payments are significantly lower than the rental value of the property, and the person who lives in the house will end up having to reimburse the out spouse for the difference in these values (this is called a Watts reimbursement claim).
There is too much tension between you and your spouse, and you'd be happier living somewhere else.
You want your privacy, and you can't have that if you live in the house with your ex.
You want to establish an incontrovertible date of separation, and if you continue to live in the house there is a risk your spouse will later claim a reconciliation.
You don't want your spouse to file a false domestic violence claim against you to get you kicked out of the house (you'd be surprised how often this happens).

You should consult an attorney to analyze all these factors, and perhaps others I didn't think of, before you make a decision. Only an attorney can give you legal advice.

I do not represent the person who asked this question, and was not given enough information to provide a better answer. The limited information is enough to indicate that a consultation with an attorney in your area is necessary and advised.

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