Can I Go or How Do I Stay in the Same House With "Them"?

Posted almost 2 years ago. Applies to New York, 1 helpful vote

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The second most frequent question we get from those contemplating divorce is 'Do I have to stay?" or 'How do I get him/her out of the house?'. It is clear that whatever the tension level was as the decision to divorce was being reached, that it will, at best, not lessen when the divorce finally begins. Frequently the first months of a divorce are the most contentious and the time when both parties will contemplate a variety of steps that they might take to either remove themselves from the household or to get their spouse removed. The decision to go, however appealing, is not as simple as it might otherwise appear.

The first consideration is always safety, yours and that of your children. If things turn bad, go and take the kids with you. Legalities give way to practicalities when physical safety is threatened. Paperwork can always be filed immediately after your departure from the marital residence. If it is not safety that fuels your desire to leave the house (which assumes that it is not possible to have your spouse removed either with an Order of Protection or an award of Exclusive Use and Occupancy), there are a few points to consider when making the decision to leave:

1) Children - Leaving your home, either with the kids or leaving the kids with your spouse both carry potential consequences and the possibility of immediate litigation. You should discuss the pros, cons and possible outcomes with your attorney before making a hasty decision to leave.

2) Money - Here, as with children, above, leaving the marital residence has different consequences if you are the one who has been supporting the household economically or if you are the one in need of support. The Court's desire to maintain the status quo, new law regarding spousal support and the economic realities of supporting two households must be considered before you go.

3) Property - Few people who choose to leave are thinking about things at the moment they do. If you take some clothes and necessaries when you go you may find you have left behind a lifetime of items of personal significance or economic value that may disappear quickly. Locks get changed and return trips to get more of your things are not always possible. When to go, how to go and what to take must be carefully considered. Assume you only get one chance but weigh what you take against Automatic Orders which go into place at the moment a divorce action is commenced and the fact that the Court will probably react badly if the house is stripped. Always make a video record of what you take and what you leave as you go so there will be proof if needed.

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Keith, Shapiro & Ford

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