“If I leave the marital home, I will be considered to have ‘abandoned’ the home and my claim to it”
We have previously blogged about some of the common misconceptions pervading the divorce process in New Jersey. This blog will dispel another popular New Jersey divorce myth: One spouse vacating the marital home is treated as that spouse “abandoning” the home and likewise abandoning (or reducing) their interest in the home.
Despite the fact that many spouses choose to live separate and apart before or during divorce proceedings, it is entirely common that a litigant is hesitant to move out of a marital home because of what they perceive to be the potential consequences; more specifically, the loss of their interest in the home for purposes of equitable distribution. The truth, however, is that one spouse’s decision to vacate the marital home does not constitute “abandonment” of that spouse’s interest in the home. This is a common divorce myth. A spouse’s equitable interest in marital real estate is not extinguished simply because he or she moves out. Physical residence in the property is not required in order to preserve an interest therein.
While the act of moving out, by itself, will not defeat one spouse’s interest in the property, the question of whether there is any impact at all on that spouse’s interest is fact specific. For example, if the spouse who vacated the home also ceased contributing financial support necessary to maintain the home at the time he or she moved out, that could have an impact on that spouse’s equitable interest and/or become a factor for purposes of determining support. But, if the financial maintenance of the home is not impacted by one spouse moving out, there is no generally legal or equitable basis to justify limiting or reducing that spouse’s interest in the home.
Vacating the marital home may, however, have an impact on child custody and the related issues. One spouse’s decision to move out of the marital home, thereby leaving the other spouse to care for the children on a sole or primary basis, could have a potential negative impact on the departing spouse’s ability to argue for primary or shared residential custody down the road. As a practical matter, it can be difficult for one spouse to argue for primary residential custody of a child when that spouse made the voluntary decision to move out of the marital home thereby leaving the child in the primary custody of the other spouse. But, again, this becomes a fact specific inquiry. In some cases, particularly those where the level of contentiousness and discord is high, it may be in the children’s best interests to have their parents living under separate roofs. Whether or not the parties had an agreed-upon custody schedule ensuring both parents have time with the children prior to one spouse moving out would be a relevant consideration.
The bottom line for purposes of this blog, however, is that there is simply no truth to the notion that one spouse’s decision to vacate the marital home, by itself, serves to defeat or minimize that spouse’s interest in the home.
Thomas Roberto, Esq. is a partner and shareholder with Adinolfi, Lieberman, Burick, Falkenstein, Roberto & Molotsky, PA in Southern New Jersey. Tom works with families across New Jersey helping them resolve their unique family law issues. Tom is a frequent contributor on NJ.com and regularly tackles the topic of myth in the New Jersey divorce and family law process – read his previous blog debunking the myth legal separation is the same as divorce.