Divorce is one of the most challenging experiences a family can face, especially when children are involved. One question that often arises is whether both parties should remain in the marital home during the separation and divorce process. Not only does a decision to move out of the marital home carry both emotional and financial implications, but it can also have legal consequences that divorcing spouses must carefully consider.

Why Some Parties Choose to Continue to Live in the Marital Home During a Separation and Divorce

Staying in the marital home during a divorce is often driven by concerns about stability for the children and financial feasibility. However, there may also be legal reasons to stay in the marital home post-separation.

Do You Want to Stay in the Home Post-Divorce?

Virginia is an equitable distribution state, which means that a court must distribute marital property, and grant a monetary award to either party, in a way to ensure an equitable or fair distribution of marital property and debts. The marital home is typically one of the largest marital assets. If you move out of the marital home, you do not forfeit ownership; however, you may lose control over what goes on inside of the home, how the marital home is treated, and the upkeep of the items within the home, which could ultimately affect the fair market value of the marital home. Further, staying in the home may demonstrate continued use and attachment to the property, potentially giving you more leverage in settlement negotiations over who may remain in the home after the divorce. 

Stability and Continuity for the Child(ren)

Staying in the marital home may also provide stability for the children during a separation and divorce. When it comes to the custody and care of minor children, Courts in Virginia prioritize the best interests of the children. Remaining in the marital home during a time that poses inevitable uncertainty regarding a child’s future may provide continuity and stability for the children, especially if it allows the children to remain in their current school district, maintain community ties and friendships, and continue with their normal routines.

Challenges of Living Together While Separated

While staying in the marital home may be beneficial, there are also some challenges that come with cohabitating during a separation and divorce. Divorce often brings emotional conflict, and sharing a living space during this time can exacerbate tension, potentially impacting your mental health and legal outcomes related to custody and the division of marital assets. 

Impact on Custody Disputes

Living together while going through a separation may lead to conflict, which can spill over into custody disputes. If the home environment becomes hostile, a court may view this negatively when deciding custody. A high-conflict situation could be seen as detrimental to the well-being of the children, leading the court to make a custody decision based on which parent the Court believes can provide a safe, supportive, and conflict-free space for the children. Further, the Court may also consider the tension between the parties when deciding whether the parents are capable of co-parenting with each other post-divorce. Thus, if the home becomes a battleground for ongoing disputes, this could outweigh the benefits of remaining in the same physical space. If you choose to move out of the marital home, the size and adequacy of your new living space for children could also greatly impact a custody decision.

Defending Against Claims of Abandonment

Virginia recognizes both fault and no-fault grounds for divorce. Willful desertion and abandonment are one of the few fault grounds for divorce. A party may file for divorce based on willful desertion and abandonment if the other spouse intends to end the marriage, without justification and without the consent of the other spouse. While willful desertion and abandonment typically refers to abandoning the marriage (as opposed to abandoning the home), if you decide to move out of the marital home, it is essential to continue with your normal family or marital responsibilities. Leaving the home in a manner that prioritizes the best interests of the children and continued contributions to the marital responsibilities, such as contributing to expenses, can protect you from defending against a desertion or abandonment claim. 

Setting Clear Boundaries

If you choose to remain in the marital home, it’s crucial to set boundaries and reach comprehensive agreements early in the separation process, if possible, to avoid misunderstandings and to lower tension over the parties’ individual responsibilities in relation to the marital home and the children.

Seek Mediation or Legal Counsel

Mediation or retaining legal counsel can help spouses work out the terms of cohabitation during a separation and can help facilitate discussions about parenting responsibilities, financial contributions, and household management. 

Alternatives to Staying in the Same Home

In cases where cohabitating during a separation is not feasible due to conflict or other issues, there are legal alternatives to consider.

“Nesting”

One alternative is “nesting,” an arrangement where the children remain in the marital home, and the parents rotate in and out on a shared custodial schedule. This allows the children to benefit from the stability of staying in the marital home full-time, without requiring the parents to cohabit. Nesting requires both parents to have another place to live half the time and requires careful coordination and agreements regarding time-sharing, expenses, and household management.

Moving Out with an Agreement

If staying in the home creates too much conflict, moving out may be the better option. However, it is important to only do so after seeking advice from legal counsel, after careful consideration, and if possible, after entering into an agreement with your spouse that clearly defines a custody and visitation schedule for the child(ren) (even if an interim or a temporary agreement). Seeking legal counsel to draft or review these agreements is also important to ensure that your rights are protected and that the agreement is enforceable.

Conclusion

Deciding whether to stay in the marital home during a divorce is not just a personal decision—it may offer advantages in terms of property division and stability for the children. Nevertheless, it also comes with risks, especially if the living environment becomes contentious. If you’re facing this decision, consulting with a family law attorney can help you weigh the pros and cons based on your specific circumstances and protect your legal rights throughout the process.

If you’re navigating a divorce and need advice on whether to stay or leave the marital home, please contact Alexandra Fletcher, Esq. at (703) 525-4000 or afletcher@beankinney.com.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.