There seems to be a lot of misinformation about the consequences of abandoning a marital home either during, or right before filing for divorce in New Jersey. In this video, New Jersey divorce attorney Jordan Rickards dispels some of the myths, and explains what you won’t lose, but what you might risk, if you abandon the marital home.

The following is a transcript of the above video.

“Hi, everyone. Nice to see you. I want to talk today about a question I get a lot, which is whether you can abandon the marital home either during a divorce or right before divorce, without losing an interest in the marital home, or are there consequences? And the answer is, well, those are two different things. The short answer is you can leave the marital home without losing your marital equity in the home, but that doesn’t mean there aren’t consequences. And let me explain.

The interest that you have in the marital home accrues during the time of the marriage. So from the date that you get married to the date of the filing of the divorce, that’s considered, basically, the length of the marriage. Now, there are some exception to that in extreme circumstances, which we don’t really have to get into here. But for 99% of the cases, when we’re measuring the marital state, we’re looking at the date that you were married, all the way to the date that you filed, or your spouse filed her complaint, or his complaint, for divorce. And whatever interest accrued in the marital home during that period of time, is basically locked in.

And there are times that you can trade it off for other interests and other things, but the general rule is it’s basically locked in, whether you leave the marital home or not. And keep in mind, there’s an inevitability to this. You’re going to leave, you or your spouse, or both, will leave the marital home eventually because that’s why you’re getting divorced in the first place. You guys can’t live together under the same roof. So something’s got to change. Whether you leave, or whether one person leaves right before the divorce or during the divorce, is totally immaterial to any interest they have in the house. It’s locked in whether you are there or not.

There are sometimes exceptions to this. And again, this is another extreme circumstance which rarely occurs, but you see this sometimes where people have been married for, let’s say, 20 years, and someone left 10 years before they filed for divorce. Well, then we get into a different discussion of when does the marital estate really terminate, and that’s a whole different topic. But for your typical case, a typical person who calls me and says, “Look, I’m going to be getting divorced. Is it okay if I leave the home?” I’m going to tell you, yes, you can leave the home in that you won’t abandon your interest in the marital home. Your dollar interest is still locked in, so you don’t have to worry.

However, here’s the caveat. Here’s where it becomes a problem. When children are involved, leaving the marital home can sometimes be tantamount to leaving the children. And I don’t mean in an abuse and neglect child welfare thing. That’s not what I mean. What I mean is, courts like to maintain a status quo. So as long as you and your spouse, let’s just say it’s husband and wife, are living together under the same roof with the kids, they’re both enjoying equal parenting time with the kids. Once, let’s say, the husband leaves and goes and gets a place of his own, it’s very difficult for them to therefore establish, or thereafter establish, an equal parenting time plan. And if they don’t, it’s going to be much harder for that husband who’s left to go to court and argue for an equal parenting time plan.

I talked a little bit about this in the other video I did called the Seven S’s of Child Custody and Parenting Time in New Jersey. And if you haven’t seen that, you should go watch it. And if you have seen it, you’ll remember I talked about a few things such as the status quo. Courts like to maintain a status quo. They like to maintain stability when it comes to the children.
If you’ve left the marital home, and now you’re only spending overnight parenting time with your kids on weekends, and remember, overnight parenting time, that’s the gold standard of parenting time in New Jersey. That’s what courts are looking at who’s spending overnights with the kids. If you’re only spending overnights with the kids now twice a week, well, when you go through your divorce, which is going to take a year, could take 18 months, could take two years, and that standard has ossified, it’s become the standard by which the kids are used to and everything now, and you and your spouse are used to, you’re going to have a heck of a time telling a court, “Well, now I want 50-50 parenting time.” Because even in abandoning the house, you’ve abandoned your 50-50 parenting time arrangement.

The other mistake people make, and I mentioned this in the other video as well, is they have multiple kids and they go out and they get a place of their own, but the place isn’t big enough to exercise parenting time with the children. If you’ve got three children and you’re living in the marital home with them, you can’t go out and get a one bedroom or two bedroom apartment, and now expect that you’re going to have equal overnight parenting time with the kids because there’s not enough space for them.

You can’t move to an entirely different school district and expect that you’re not placing yourself at a disadvantage because now you have to tell a judge, “Judge, I want to be the parent of primary residents with these kids,” which means by the way, they’re going to have to change school districts, which by the way, would oftentimes have to occur during the school year because it’s not like divorces are perfectly timed to always be during the summer or something like that, where the kids have a hard break in their schedule. You’re going to have a heck of a time telling a court, “We should move these kids to a different school district, and let’s say even into a smaller apartment where there’s not room for them, so that we can now break with the status quo that we established. And now I can enjoy more parenting time than I have been for the last year or two since I left the marital home.”

We can go into greater depth on that. And what I really like, though, is when people have specific questions, they just give me a call and I could answer their specific concerns because every divorce is different. And I can only speak in these short videos in broad concepts, and that’s the broad principle.

If you have more questions about this, please feel free to give me a call, I’m happy to speak with you. And again, I encourage you to watch my other videos, especially the one, The Seven S’s on Custody and Parenting Time in New Jersey. That’s an important one. You might want to check out the video I did also on nesting agreements, which is an alternate custody arrangement where actually both parties keep the house and just split time in the house. It’s very complicated and it’s unusual, but it does happen once in a while. So you might want to watch that. And of course, as always, watch my video on a divorce overview of New Jersey. All right, guys. Thanks for watching. See you soon.”