Do I Have To Move If I Want a Divorce?

No, nobody HAS to move. There are folks who are getting divorced who are still living together, who are planning the move, perhaps looking for the right house or apartment for him/her, perhaps looking for the right house in the same school district that the kids are in right now, so that it doesn’t matter which parent the kids are with, they’re going to the same school. Perhaps taking the same bus.

These people are known by a technical legal term: SMART!

Think about it: very few folks get divorced because there’s just too much money. A a lot of people develop problems and then divorce because there isn’t enough money to go around. In addition, you’ve got to pay your lawyer, the other party has to pay a lawyer too… Do you really want to take on another rent payment for that apartment, in addition to the house payment? If you can avoid it, you should. To the tune of about $1500 or more a month, in this market, for each month that you two can live, amicably, under the same roof.

If it’s not amicable?

Then fine, time to go. No sense in letting someone beat you up, no sense in losing your temper and beating someone else (although if you do beat someone else, in a divorce situation, you do get free room and board -AT THE JAIL).

Obviously, the two of you are getting divorced, and you are not going to be living together for the rest of your lives. 90% of the persons getting divorced, by the time the divorce rolls around, believe that they have to move (or the other party has to move, but SOMEBODY has to move). Some experts, (like the one to my right as I type this) insist that the percentage of persons who just plain HAVE to move is even higher and that my writing of the first three paragraphs here are a complete waste of time. Even so, the point is made. If you can live together, save a little money, then do it. If you can’t, then fine. Somebody’s moving, either sooner or later.

Marital Property Division

Let’s talk about theĀ property, and let’s talk about the mechanics of it all. The key to this thing isĀ planning. There are a lot of questions to be answered, and, obviously, if one or two of the pertinent facts change, then the answer changes with it. The standard of review, the thing that the judge will be looking at, is FAIRNESS. Maybe, if you’re lucky, even a little wisdom, and common sense. (Oh, and by the way: you don’t have to wait for the judge to be the one to bring a little common sense to the case. You and your soon-to-be-EX could bring a little common sense of your own to the case, you know, make life a little easier, do your divorce a little cheaper, etc…). Anyway, back to PLANNING.

Let’s examine the property itself

Was it acquired during the marriage? If it was acquired BEFORE the marriage, there’s a real strong presumption that it should stay with the person who owned it before.

Example A (ridiculously in favor of husband):

The husband owns a house, he’s got a good job, he gets married to Wife, whom he met on a cruise, and moves her into his house, and marries her. Two years later, they are getting divorced. HE’S GOING TO GET TO KEEP HIS HOUSE. That doesn’t mean that she’s got nothing coming, she very well may, but as to who’s going to keep that house, IT’S HIM! SURPRISE!.

Example B (ridiculously in favor of wife)

Husband owns a house, but he lost his job and is in foreclosure with the mortgage company, and he meets and lives with Wife for two years (who contributes a lot, out of her earnings, to save the house), THEN they get married, and she’s working, and she’s paying, and he’s not (or marginally so), and they’re getting divorced seven years later, and the kids are best friends with the two next door, and the lady next door is the one providing childcare while Wife works.

The judge is very likely to rule that the Wife keeps the house. That does not mean that the Husband has no money coming. He does (probably the amount of equity that was in the house when they met). But Wife is going to keep that house, and the judge is going to look for a mechanism for payment, not look at some “general rule” that “what you owned prior to the marriage, you still own after the marriage”. That’s bunkum.

So do this: List each fact, on a sheet of paper, both in your favor and against your point of view. Go over these facts with your lawyer, and make a determination as to whether the other party is likely to be awarded the house, or whether you are likely to be awarded the house. Obviously, the one NOT getting the house probably has some money coming, based on their contribution (or not, based on the lack of it). TRY TO BE REASONABLE. PUT YOURSELF IN THE PLACE OF THE JUDGE, who has to make a decision based upon all the facts, not just some of the facts.

Consider the following:

  1. She was raising babies, while you worked? Her contribution was probably equal to your own. Unless of course, she wants to keep the house, because it’s the only house those babies have ever known, and she can buy you out of your equity, and she can get the money to do it, at which point, she’s pulling ahead, equitably speaking….
  2. He met you in Las Vegas, married you the same weekend, and you’ve been in his house a year, and you supervised the remodeling of the kitchen, and now you’re getting divorced, and you want half the house? I don’t think so dear…(in addition, if you paid $5000 for a kitchen remodel, but it only raised the value of the house $2000, you’ve got about a thousand bucks coming [half the increase in value, not half the cost: think about it].

You need to go over this with your lawyer. I’ll try to come back to this subject, perhaps add a few more examples, but no guarantees.

Somebody is Moving

Somebody’s keeping the house, and the other party is getting a refund, or payment, of their FAIR share of the equity of that home. One party is moving, and it might or might not be you. You and the other party need to talk this over, do a little planning. If you make a generous offer now, it could come back, three times over, in another area: (“Well, dear, I know that your main concern is a place for you and the kids, but my main concern is being able to see the kids every Sunday. The church means more to me than to you, it always did, and I’m not making any accusations here, it’s just the way it is, and I’m suggesting that you let me have the kids every Sunday (absent some family thing on your side), and, in exchange, I’m willing to give you the house equity, you just live here and keep making the payments, and that’ll be fine with me.”)

Well, that might have cost you five thousand bucks. Let’s look at the alternative: you DON’T make a ‘generous’ offer. You DON’T have an agreement. You bring me five thousand bucks (really) and we go to trial. It won’t last as long as the Simpson murder case, but it’s going to run a long time, all at my usual hourly rate, and when we’re done? The judge is very likely to award you every other weekend, and Wednesday evenings, with the children. So much for Sundays. By the way, you didn’t make YOUR kids happy, you made MY kids happy (“Dad had a week-long trial”. “Yeah, but when he does that, we get lots of stuff…”). Congratulations.

So (to wrap this up) nobody HAS to move. But somebody IS going to move, aren’t they? Use a little planning, do a little compromising, use common sense, based on FAIRNESS, and you can come up with a reasonable solution that works for your family.