Reasons Not To Move Out
The first piece of advice I give to a person seeking consult about an Ohio divorce or dissolution with children is, “Do not move out”.
If a divorce is filed by either you or your spouse, it is likely that temporary orders have or will be requested. A temporary orders hearing serves the purpose of determining how the parties are to act with and around one another, what their financial obligations, and any child custody issues during the divorce. If you have already moved out of the home prior to the divorce being filed, the court is likely to award temporary custody of the children to the parent that is still living in the martial residence. Why, you might ask? Ohio Courts want a divorce to effect children of the marriage as little as possible. If the children are forced to move out the home they have grown accustomed to during their lives, this may negatively impact the children by creating instability and unnecessary change (i.e. moving a far distance from friends and family, having to change schools, a major change in environment, etc.).
Child custody is often one of the most highly contested and aggressively litigated issues in a divorce. If one spouse moves out of the marital home, the other spouse already has the upper hand when it comes to ultimately being awarded custody of the children. A divorce can last up to a year depending on the complexity of the issues, and in some cases longer. So in short, if you want to have custody of your children during that period of time, do not move out of the home. For more on custody, visitation, and other child related issues, please visit my blog article: https://www.dissolutionanddivorce.com/children-and-an-ohio-divorce/ for more information.
When You Can’t Stand Living with the Person
This piece of advice always leads to the next major concern: “I can’t stand living with this person anymore! What can I do?”
In most Ohio counties, the domestic relations court will automatically issue what is called a mutual restraining order, which prevents the parties from annoying, harassing, or physically and mentally abusing one another during the divorce process.
Other Ohio counties, such as Stark County, require that the party requesting the restraining order file a motion, affidavit, and proposed order stating that, if not restrained, the other party will likely annoy, harass, or abuse the other. Just because a restraining order is in place does not mean you can’t talk to your spouse, but rather, it means that it must be done in a civilized manner, and if one person requests that the communications cease, then they must. If annoying or harassing continues to be an issue, a contempt action may be filed for violating the restraining order, and the accused could face penalties such as fines, jail time, and payment of the other party’s attorney fees for bringing said action.
Under The Roof Order
If neither you nor your spouse is willing to move out of the martial home, the court will likely issue what is commonly called an under the roof order. This usually requires that both parties deposit all of their income into a single joint checking account for payment of martial bills. One or both spouses will be in charge of writing checks from the account to pay these obligations.
Since you and your spouse will be living together during the divorce proceedings, no temporary order of custody or child support is necessary. You and your spouse will pay bills out of the joint account and will be allotted some amount of spending money per week. Any other expenditures above and beyond paying the martial bills and the allotted spending amount will need to be agreed upon by both parties and approved by the court. All of the previously mentioned restraining orders will remain in place and both of you are expected to follow these orders during the entire divorce process.
Should You Move When You Agree on Everything?
Next popular question: “My spouse and I have agreed on everything, including child custody, and are now ready to go forward with a dissolution, can I move out of the home now?” My answer: NO.
I have seen the situation many times where parties are trying to work out a dissolution and everything is going quite well, and then one party, for one reason or another, files a divorce and makes a request for temporary orders. It is best to wait until there is a signed agreement by the both of you and the dissolution is finalized to move out of the home. It is also important to keep in mind that you are not without recourse if your spouse is threatening to be or is being physically abusive to you and/or your children. These are serious accusations and should not be thrown about without merit absent any actual real threats of harm or physical abuse. If this is the case, your divorce attorney may file for an ex parte CPO, which would require your spouse to move out of the home and would temporarily protect you and your children until a full hearing is held on the matter. A motion to vacate the martial home may also be filed if there is this kind of abuse going on. If this is done the court may require the abusive spouse to vacate the martial home. As always, if you feel you are in immediate, life threatening danger, contact the local police right away and obtain a copy of the police report for later use.
What If You Don’t Have Children
“Hey, I don’t have any children, am I putting myself at a disadvantage in any way by moving out of the home?” Generally, my answer to this question is no. When it comes to real estate, if the home was bought during the marriage, any equity in the martial home will be divided equally between the parties whether both parties are living in the home or not at the time this decision is made. When it comes to household goods and furnishings, it is always a good idea to come to an agreement on who will get what. It is not uncommon for items to come up “missing” after one party has moved out. Coming to a signed agreement in which both parties acknowledge the items in one another’s possession can help alleviate this problem and help to avoid a costly trial over a tackle box or a sewing machine. Also, if you requesting that your spouse pay you spousal support, moving in with another person in which you are involved with romantically will hurt your chances to receive any kind of spousal support. Every case is factually different, which requires a different assessment of how the law should and will be applied. Therefore, make sure to contact one of our experienced domestic relations attorneys to find out how your move will affect the other issues in your impending divorce or dissolution.
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