Can I Leave My Home & Kids

By | December 15, 2015

Has the arguing and tension in the house reached DEFCON 1?  Are you walking on egg shells and every encounter with your spouse a potential explosion?  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.  One of you are going to snap and someone is going to spend a night in jail. You just know it.  You would leave, but you don’t want to charge with abandonment.

Before you leave, or stay, there are a number of things to consider.  While it may be a smart move, you need to understand how courts view moving out. 

To Leave or Not to Leave

To leave or not to leave.  This would be the question posed by Shakespeare if he ever thought of divorcing Anne Hathaway.  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.  Family court has no jurisdiction over criminal charges.  Besides, you are leaving your children with your spouse.  Abandonment of children is a divorce myth.

You do need to be careful with custody and visitation.  If you leave the kids with your spouse, be careful not to dig yourself in a 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 arrangement appears to be working.   We typically advise clients to schedule at least three days of a custody a week.  A day of custody would include sleepovers.  Anything less than three could give your spouse primary physical custody of the children.

Next is abandonment or desertion of a spouse.   There is no law regarding abandonment or desertion of a spouse.   I take that back, you have NRS 123.100, which states you are not obligated to support a spouse who abandons you.

You may feel obligated to help her financially, but there is no law requiring you to.  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/or child support.   The judge may not be happy with your attempt to financially strangle your spouse.

On the flip side, you need to be careful with how much you provide 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.

Leaving the home is typically the final concern.   It’s important to realize, you are under no legal obligation to move.  Whether your name is 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.

If you decide to leave you are not abandoning or 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.

Can You Afford to Move Out?

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 very 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.

Just remember you need to have a home where the children can spend the night at least three times a week.   Moving in with family may be an option.

Another option when going through a divorce is 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 savvy alternative.

About Author:

Stacy Rocheleau is a divorce lawyer in Las Vegas, NV.  She founded Right Lawyers in 2001 focusing on divorce, child custody and family law.   With offices in Las Vegas, NV and Henderson, NV Right Lawyers has helped guide thousands of clients through these issues.

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