At the beginning of the divorce process, many clients ask me whether or not they should stay in the marital home or move out. My advice to the client is always to remain in the marital residence until the process has begun and, if necessary have a judge determine which party should remain in the home. Obviously, continuing to live in the same home as the person you are preparing to divorce is not a comfortable situation for either party. However, if the court thinks that the parties can live together peacefully in the home during the period of separation the court will not evict either spouse.
If, in the alternative, the parties are not able to live in the home peacefully, the court is authorized, by statute, to evict one spouse and award exclusive possession of the marital residence on an interim basis to the other. Typically, the marital residence is awarded to the spouse who remained in the home while the other willingly moved out. It is for this reason that I advise clients to remain in the marital home until directed by the court to do otherwise.
If the residence was purchased by one spouse before the marriage or is titled in only one spouse's name, that spouse is traditionally awarded the home. Otherwise, the court will consider a number of factors when determining which spouse should be permitted to stay in the marital residence. These factors include, among other things: the level of conflict between the parties, the parties' ability to find alternate housing, and the affect on the child custody arrangement.
Although an exclusive possession order does not preclude the court from awarding the home to the spouse who left during separation, the practical reality is that it is more difficult for that spouse to return. Therefore, if you are deciding to separate from your spouse and begin the divorce process, do not willfully vacate the marital residence before speaking to an attorney. Remember, it's your home too.
Call my Pittsburgh law office, Gusty A.E. Sunseri & Associates, if you need advice regarding your divorce questions.