Legal Question in Family Law in California

It is more lay-people's lore than legal reality that who moves out matters in most divorce cases. HOW and WHERE you move out can be relevant, but way too much domestic violence occurs around divorces for the courts to penalize anyone for being the one to cool things off and move out. The biggest issue is kids and the house. If you move out you want to make sure you do it in a way and to a place that indicates you want to, and allows you to be a part-time parent to them. For people who want the family house in the end, $$ count more than who moves, but it can play a role. In your case it's not a factor at all, though, since you don't own it. The key is to plan ahead, have a decent place for the kids to spend time with you lined up, and then file for temporary orders for custody and support right on the heels of the divorce filing.

I can tell you from experience that my worst family law cases are the ones in which the parties attempt to live together while getting divorced. There is no prohibition against it, per se, but it is not practical. Sooner or later all hell breaks loose.

With that said, the only way a spouse can be excluded from a residence is when the court issues a protective order under the Domestic Violence Protection Act. At that point, the party excluded is branded an "abuser" and problems arise in calculating support, etc.

Living together while getting divorced also presents the problem with determining the date of separation for the purpose of distinguishing between separate and community property. This creates a "he said she said" because the parties are not really physically separated. Separation is defined as a physical separation with the intent not to get back together.

The main worry, from the minimal facts stated here, is that if you move out, you ruin your chances of being the primary parent, which I don't think you have considered all aspects of. Have you made the determination that you cannot afford to care for your child based on receiving child support? Have you looked into government assistance? California has a website that can give you a child support figure, but it is complicated. It may benefit you to at least do an initial consultation with an attorney. Many do it for free. Or consult your local family law facilitator's office. If your ex becomes the primary caregiver, you will be responsible for paying child support, regardless of being unemployed. If you don't pay, nasty things can happen.