Clients often ask me what happens if they decide to move out before a divorce petition is filed or while the divorce is pending.
Abandonment. Some states have the concept of "abandonment." Clients worry sometimes that if they move out of the marital residence that it will appear that they are guilty of abandonment. Whether abandonment is physical or emotional, the concept does not affect a divorce in Colorado. Since Colorado is a no-fault divorce state, whether someone "abandoned" the marriage does not matter. Frankly, even if a party leaves the family home and begins a relationship with someone new, however unsavory that may be, it does not affect the divorce or the division of property. The only way it can affect things is if the new boyfriend/girlfriend is a danger to the children. Although someone may say you have "abandoned" the family, you should not worry about moving out affecting your divorce -- legally.
Children. Some clients are concerned if they move out of the house that they will not be able to get "primary custody" of the children. Colorado does not have "primary custody" only a division of decision making responsibilities and parenting time. If you do move out of the marital home, you want to be careful about what the parenting time schedule becomes. Having frequent parenting time with the children may become more difficult if you are not in the marital home. If you move out and happen to have less parenting time with the children as a result, that may be a disadvantage if you later want to increase your parenting time. At a temporary orders hearing, the Court may look at the "status quo" when trying to decide what parenting time arrangement would be best or less stressful for the children.
Domestic Violence. If domestic violence is an issue, for safety, you probably do not want to be living in the same house. If you are the victim of domestic violence, you want to make a safety plan with a domestic violence agency. Sometimes you see people attempt to get a restraining order to force someone out of the house without really having the level of danger that is needed with a protection order. It seems like the protection order forcing someone out of the house is done more as a strategic move. However, if mere annoyance or bad behavior is happening, you want to think carefully about whether to try to obtain a restraining order/protection order to force someone out and use as "leverage" regarding the children -- the Courts do not look on this fondly and it often backfires.
Finances. Some couples cannot afford to keep up two households until the marital property and debts are divided. You may be better off moving into the basement or a spare bedroom rather than incurring the responsibility and debt of a 2nd house or an apartment. You should think carefully about whether you can afford to move out right now.
The Mortgage. The other problem with moving out of the house is that it is harder to control whether the mortgage is being paid, and if the utilities are paid and kept on. While you can ask in a temporary orders hearing that certain monthly bills get paid, you may not find out whether they are being paid until too late. Until the mortgage is refinanced and the bills are placed only in one person's name, any joint debt is still joint debt. The mortgage company can still foreclose and ruin your credit even if your spouse is supposed to be paying the bills. Do not forget that the divorce court cannot affect the contract relationship that you have with the creditors. So even though a debt may be ordered to be the responsibility of one person, that does not mean that the creditor cannot come after you if your name is still on the debt. You may want to work out certain times that you can inspect the house (if your divorce is going to be pending for a long time) or just visit occasionally (assuming that your spouse was not given exclusive possession of the house). If one spouse has exclusive possession, you still can be invited over but I would caution you from just dropping by and using your spare key to snoop around.
Possession. One of the biggest problems in moving out of the house is what I call the "9/10ths rule" that possession is 9/10ths of the law. If you have moved out, the Court is less likely to order that you move back into the house while the divorce is pending if you have already moved out. Generally the Court likes to keep the status quo and is more likely to keep the parties in the locations that they are at the time that they come before the Court.
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