Legal Question in Family Law in California
I live in Orange County, CA and have been married for 20 yrs., we have 3 children ages 13, 15 & 17. My wife asked me to move-out about 2 weeks ago which I did. Now I want to move back in the house. If one of us were to file for divorce, what is the law as it relates to occupancy of our primary home where our children live? I've heard that it's best if I'm in the house at the time.
Assuming we were both living in our home, what is the law as it relates to one spouse filing a document to force the other spouse to move out?
If we were to divorce, I would like to stay in our home (which we rent) and have her move-out. I appreciate your insights.
1 Answer from Attorneys
Who's name is on the rental/lease agreement? Is her name only on the rental agreement? Are you trying to keep the children together?
The act of filing for divorce doesn't mean someone has to move out. The court can order one to move out when its necessary, for instance because of physical abuse and grants a restraining order. Otherwise you can live as roommates. While you separate mentally you can physically separate after the divorce proceeding is final.
But YES it hurts your case to move out when you have children. Although there are presumptions in the law about joint custody in reality you're basically letting the other parent have primary and sole custody and then setting yourself up for only visitation which would reflect the amount of time you're actually visiting. Note this time disparity is then reflected in child support obligations. Thus you ought to stay in the house with the children and try to keep them together.
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