A husband and wife, father and mother are constantly fighting, there is a lot of tension in the household but the couple has been told one party cannot leave the household.
So the question is, does one of you leave or do you stay and weather the storm? Contrary to what many people believe, there is no legal requirement that you stay in the home and possibly in a situation which may be harmful to the couple or family’s emotional well being.
The popular conception is that leaving the marital home could be considered abandonment. Abandonment used to be one of the grounds for a divorce, however, New York has finally entered into a No-Fault divorce policy. Therefore, one does not need grounds for a divorce. Even in our Fault based divorce system, prior to our No-Fault statute being passed, “fault” had no relation to the equitable distribution of property, contrary to the belief of most people. Therefore, whether or not there was abandonment, had no bearing on who kept the house or property.
I cannot tell you how many times I have heard this fear in people. Trial attorneys would use the fact of leaving the house as a bargaining chip between attorneys when, in actuality, the Courts would not apply that reasoning in the litigated divorce case.
So couples should know, your home will be part of the equitable distribution, regardless of whether or not one has left the home. If it is possible to stay in the home, then this would be the optimal solution as long as it is healthy to all. It may be advisable financially. In addition, be aware that if one of you does leave the house, it is still important to make sure it is discussed and agreed upon in advance as to how the finances will work. This is where mediation can be extremely helpful.
If you or your spouse choose to leave, however, getting an agreement done as soon as possible regarding your affairs, finances and children is the only way to go.
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