Older couple going through divorce

If I Move Out, Is It Considered Abandonment?

By Michael DiFalco

Many people fear that if they “abandon” or leave the marital home, it could somehow hurt them in a later divorce. This is a common misconception. Under current New York state divorce law and procedure, moving out of a marital home is generally not a major issue. However, it can have an impact on your case in several ways.

In the past, New York’s divorce law required spouses to state a specific reason for a divorce. At that time, abandonment by a spouse was a valid reason that justified a divorce filing. To prove abandonment to justify a divorce petition, a spouse had to show that their husband or wife left the house for one year or more. The most common grounds for divorce was “constructive” abandonment, which meant a party had refused sexual relations for more than a year. This all changed in 2010.

No-Fault Divorce

In 2010, New York state moved to a no-fault divorce system. With a no-fault divorce, a spouse doesn’t have to show wrongdoing for a divorce to be approved by a judge. A spouse can file for a divorce without alleging any kind of fault from the other side, and the true reasons for the divorce can be kept private.

So if one spouse moves out of the marital home, that will most likely not be used as a basis for the divorce. Nearly all divorce cases in New York, even those which involve high-conflict, contested issues, are filed under the no-fault statute, so there is likely no benefit to claiming abandonment. 

Negative Consequences When Young Children Are Involved

Depending on your circumstances, there may be some negative consequences to leaving the marital home. For example, if you and your spouse have young children, moving out could affect what kind of custody you may be granted. It may result in one parent becoming the “de facto” custodial parent or may limit your parenting time with the children at least initially.

If you can, it is safer to stay in the marital home until you and your spouse can agree on a custody arrangement. At the very least, speak to a knowledgeable and skilled New York family law attorney before moving out.

Some marital situations are volatile, and it can be very difficult for two parents who are planning to divorce to live together. But if possible, control the urge to pack up and leave until you first discuss the issue with your divorce attorney.

Negative Consequences with No Children Involved

There are some potentially negative consequences that you may want to consider before deciding to move out of the marital home. One issue it may affect is when you are computing spousal maintenance, which is more commonly referred to as alimony. You may also be expected to continue paying for the mortgage and other expenses for the home, or the rent on the apartment, despite the fact that you no longer reside there.

A party who remains in the home during the case may be in a stronger position to drag out the sale or equitable distribution of the marital residence. They may also have more leverage to keep personal property such as furniture and furnishings that remain in the home. 

Exclusive Use & Occupancy

Regardless of whether or not you have children residing in the home, if you leave the marital residence and establish an alternate residence then the party who remains in the home may be able to obtain exclusive use and occupancy of the home. That means you could be court-ordered to stay out of the home even if there has been no history of domestic violence or other reason you should be prevented from returning to your home.

Contact a New York Divorce Lawyer Today

If you are contemplating a divorce, you should consult with an experienced New York divorce lawyer before you make any decision. Divorces can become very complicated and difficult, especially when you have to consider issues such as child custody, child support, alimony, and marital property disbursements.

What you do prior to filing for divorce can be very important in having a fair outcome. Contact Aiello & DiFalco today to get your questions answered honestly and compassionately. You do not have to go through this alone.

About the Author
I am a partner at Aiello & DiFalco LLP, and my priority for my clients is to guide them through an arduous court case to provide them with the opportunity to write the next chapter in their life. I tailor my approach to each client’s priorities and positions, and to the extent that matters can be predicted, I will always provide a realistic perspective of how the law could be applied to the particular facts and circumstances of a case. Since I thrive on helping people and solving problems, I bring an optimistic and positive approach to practicing in a very difficult area of law. With more than a decade of experience handling hundreds of cases, I have the ability to get results on the issues my clients view as priorities. When cases or certain issues cannot be settled, I have a solid record of success at trials, hearings, and on appeals. Feel free to contact me for a free initial consultation, I am always available to help.