If We Get a Divorce, Do I Have to Move Out of the Family Home?

Michael Fink • July 8, 2022

In most marriages, the family home is the couple’s largest asset. If the house was purchased during the marriage, it would generally be considered marital property that is subject to equitable distribution in Minnesota.

But what happens if the spouses decide to get a divorce? Who has to move out of the family home in a divorce? If you are getting a divorce and do not understand who should leave the family home, it’s important to consult with a divorce attorney in Minnesota.

The decision to move out before or during the divorce proceedings could potentially affect the outcome of asset distribution. As a family law attorney at Michael Fink Law, PLLC, I understand that living with your spouse under the same roof when a divorce is pending can be a stressful and nerve-racking experience. That is why I help clients in Minneapolis and other parts of Minnesota understand their circumstances and evaluate the potential consequences of moving out of their homes.

Things to Consider When Moving Out

If you are thinking of moving out before filing for divorce or while a divorce case is pending, you need to understand how your decision could affect the outcome of your divorce—including the distribution of property and the determination of child custody. Below are some of the things to consider before deciding to stay or move out of the marital home:

Safety. Your own safety and the safety of your children should always be your number one priority. If staying in the family home could threaten your safety or the safety of your children, it may be best to move out. Alternatively, you may be able to obtain a restraining order against your soon-to-be-ex-spouse.
Children. If you are willing to leave your children in the family home with your spouse while the divorce case is pending, it can be difficult for you to argue later in the divorce proceedings that your spouse cannot take good care of your children. Besides, without a custody order in place, it might be problematic to see the kids after you move out.
Finances. Not every married person can afford new living arrangements when moving out of the family home. That is why you need to consider your financial situation before packing your things and leaving the marital home.

If you are about to file for divorce or your divorce is already pending, consult with a family law attorney to decide who has to move out of the family home to avoid unintended consequences.

What to Do with the Family Home if You Get a Divorce

No matter who moves out and who stays in the family home, you and your spouse will need to decide what to do with the house during your divorce:

Sell the house. If spouses agree to sell the marital home, they will split the sale proceedings.
One spouse buys the other spouse out. If one spouse can afford to buy the other spouse out, they can take full ownership of the home.
Both spouses stay in the family home. Some spouses, especially those who share children, can decide to stay in the marital house until their divorce is finalized.
Refinance. If one spouse keeps the family home, they can refinance the mortgage to remove the other spouse’s name from the mortgage.
Bird-nesting. Under this living arrangement, children remain in the marital house while divorced parents take turns moving in and spending time with the kids.
Deferred sale of the home. An increasing number of spouses with minor children opt for a deferred sale of the home, which essentially delays the sale of the home until a later specified date.

Deciding what to do with the family home in Minnesota while your divorce case is ongoing can be challenging. That is why a consultation with a family law attorney is necessary before deciding to move out or stay in the home.

Who Gets the Marital Home in a Minnesota Divorce?

Minnesota requires courts to divide divorcing spouses’ marital property in an equitable manner. Contrary to popular belief, equitably does not necessarily mean equally. Therefore, it can be difficult to predict which spouse will be awarded the marital home in the event of divorce. Judges in Minnesota consider different factors when determining who gets the family home and other assets. Such factors may include:

The duration of the marriage
The age and health of the spouses
Each spouse’s employability and vocational skills
Each spouse’s estate and liability
Each spouse’s income

These and many other factors can affect a judge’s decision when determining which spouse should be awarded the marital home.

Turn to Knowledgeable Legal Guidance

For individuals contemplating a divorce or currently going through one, it’s an incredibly challenging time. If you are wondering if you should move out of the family home when getting a divorce, discuss your specific situation with an experienced divorce attorney in Minnesota to learn more about your rights and your best course of action. Reach out to my office in Minneapolis, Minnesota, at Michael Fink Law, PLLC, for skilled and compassionate advocacy.

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