Who Should Stay in the Marital Home During a Texas Divorce?

man and woman discussing at kitchen table
Filing for divorce is always a stressful and confusing experience. That is why our Fort Hood divorce attorneys often receive calls from clients asking, “Who should stay in the marital home during the divorce proceedings, and who should move out?”

Unfortunately, there is no straightforward answer to that question. Your decision to leave the marital home before or during a divorce could potentially impact various aspects of your divorce, including your ability to become the primary conservator.

It is vital to consult with a skilled attorney to consider all of your options if you are not sure who should stay in the marital home during the divorce.

The Decision to Leave the Marital Home May Affect Child Custody

If you and your spouse share children together, the decision to move out before or during the divorce proceedings could affect your child custody (conservatorship) case. This should be your primary concern if you and your soon-to-be-ex-spouse cannot agree on conservatorship without court intervention.

If you leave the family home without the kids before filing for divorce or while your divorce is pending, the judge assigned to your case may not see it as a positive move.

When either parent leaves the marital home, the judge is more likely to side with the other parent (the one who stayed) because they did not leave their children behind. As a result, the parent who stayed in the house with the kids is more likely to be named the primary conservator in a Texas divorce.

Note: In Texas, the primary conservator has the right to designate the primary residence of the child.

Who Should Leave if I Was a Victim of Domestic Violence?

If you or your kids have been a victim of domestic violence before or during the divorce case, you should consider filing a petition for a protective order. The protective order can tell your spouse to stay away from your home, place of work, as well as your children’s daycare or school.

If you merely fear that domestic violence could take place if both you and your spouse remain in the family home during the divorce, it may be a better option to leave the house and stay with a family member or friend.

However, if you share children together, leaving home could potentially have a negative impact on your ability to be named the child’s primary conservator.

Does Leaving the Marital Home Affect Property Division in Texas?

Many people who file for divorce worry that their decision to move out before or during the divorce proceedings automatically means that they lose their share of the value in the home.

However, it does not work that way. There is no guarantee that the spouse who stays in the family home will be awarded the house during the divorce. Similarly, just because you leave does not necessarily mean that you will lose the house.

The judge will not prohibit you from being awarded the marital home if you choose to leave the house voluntarily. Texas is a community property state, which means all community property between the spouses is split equally.

Under Texas law, any property acquired by either spouse during the divorce is considered community property. The only exceptions are gifts and inheritance received by either spouse as well as personal injury recoveries.

You May Get the Exclusive Use of the Home During a Texas Divorce

A judge assigned to your divorce case may issue a ruling that grants temporary exclusive use of the home to you or your spouse. Basically, it means that you or your spouse has the “exclusive” right to stay in the marital home while your divorce case is ongoing.

The spouse who was not granted the exclusive use of the home is ordered to leave the marital house. When this happens, the spouse’s decision to move out is not voluntary and may not affect their conservatorship case.

However, the spouse who is ordered to leave home during the divorce may still enter the house if they have the other spouse’s permission. You should consult with an attorney to determine whether or not you can request a temporary order hearing to request the exclusive use of the home while your divorce is pending.

What Items Can I Take With Me When Leaving the Marital Home?

The question is very tricky because, technically, the court has not yet determined who gets what in your divorce. You may not have a clear understanding of what is considered community (marital) and separate property in your home.

You can take your personal belongings, clothing, documents, and other essential items if you choose to move out of the marital home. In fact, if the court orders you to leave the family home during the divorce proceedings, you will be given a chance to go back to take your belongings.

If you are certain that some of the items are your separate property, you can take them with you. However, if you have doubts, it may not be a good idea to take something that could be considered community property to avoid unnecessary disputes.

You need to be reasonable when determining what is and isn’t your separate property. However, before taking any items from the marital home, it is advisable to consult with your attorney to understand your rights and options.

Get a Consultation with a Fort Hood Divorce Attorney

If you are getting divorced in Fort Hood or other parts of Texas and are not sure whether or not you should leave the family home during the divorce proceedings, do not hesitate to speak with a knowledgeable attorney.

At The Law Office of Brett H. Pritchard, our attorneys are committed to helping you navigate the confusing and complicated divorce process in Texas to protect your rights.

The decision to stay or leave the marital home never comes easy, which is why it is advisable to seek legal counsel. Schedule a free consultation with our Fort Hood divorce attorneys by contacting us online or calling 254-501-4040.


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