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I’m Thinking of Divorce: Should I Leave my House in New Jersey?

A mother and her child leaving the house.

The decision to get a divorce is not an easy one. There are many emotional and practical considerations to make before deciding whether divorce is the best option for you.

If filing for a divorce is a possibility, but you are not yet sure, one of the most common concerns is whether to leave the marital home. This is a difficult decision with many points to consider, such as if you have any children or have a shared mortgage payment.

Being physically separated is not a requirement for a New Jersey divorce, but a spouse may decide to leave if they do not feel they can live with their spouse any longer or otherwise need space. However, they should be aware of the downsides of leaving the home, such as:

  • It may hurt them financially because they will still be responsible for any joint payments in the marital home.
  • It could hurt their case for custody rights in a child custody decision.
  • It may allow their spouse to file for a divorce on the fault-based grounds of abandonment.
  • It could hurt them when the court is deciding how to split the marital home if they get a divorce.

It is important to understand that these downsides should not affect the decision to leave if you are in danger. If you are a victim of domestic violence or if your children are in danger from your spouse, call 911 immediately. 
In this article, we discuss the various considerations you should make before deciding whether to leave your home, how this decision impacts divorce laws in New Jersey, and the role of an attorney. We offer valuable insight on how leaving your home while still married can affect you, and on how a Rosenblum Law attorney can guide you and help you make an informed decision.

Assessing the Current Situation Before Leaving the Marital Home

Before a spouse makes the decision on whether to leave the marital home, they must consider the financial, child-related, and emotional implications of leaving. 

Financial and Practical Considerations

It is important for a spouse to consider how leaving the marital home could affect them financially before making the decision to move out. For instance, if two spouses are paying for the home, the mortgage and other utilities are a joint debt that both spouses are responsible for. 

As a result, if a spouse is still married and not in the process of filing for divorce, they should continue meeting their financial obligations – including paying their share of the mortgage and utilities – even if they leave the home. Not doing so could negatively impact that spouse if there is a divorce proceeding, specifically in the division of the marital home.

Even if a spouse is in the process of filing for divorce and leaves the home, they still must continue to meet their financial obligations. In New Jersey, both parties in a divorce proceeding are legally required to maintain the status quo established during the marriage. Maintaining the status quo means both parties must maintain the same standard of living as established during the marriage. 

If possible, a spouse who wishes to leave should discuss with their partner how they will continue to uphold their financial obligations.

It is also important to consider whether leaving the home is a good idea financially. Because the spouse who left is responsible for shared payments related to the marital home and the payments associated with their new home, leaving the marital home is expensive and may not be financially practical. 

Lastly, if a spouse decides to leave the marital home, they should make a plan to gather any and all important belongings before they leave, especially if they do not trust their partner. In divorce proceedings, one spouse could sell or damage the personal belongings of the other spouse, which would be difficult to prove. The spouse who left should make sure they take all important belongings with them, especially documents that may be necessary in a divorce, such as personal identification, household documents of bills the spouse has paid, bank statements, child care documents, etc.

Child Custody Considerations 

Moving out of the marital home when there are children present may negatively impact the spouse who left in a divorce proceeding. When child custody is decided in a New Jersey divorce, the best interests of the child are the primary concern. A judge may view one spouse leaving the home as abandoning their child, which could lead to the other spouse being favored in the child custody decision. 

Even if the judge doesn’t rule this way, they may decide that the status quo should be upheld. This would mean if the child previously lived in the marital home with the parent who stayed, they would remain in the primary custody of that parent. Do not leave the marital home without considering how this decision could negatively impact child custody decisions.

How Leaving the Marital Home Impacts Divorce Proceedings in NJ

If a spouse leaves the marital home and they or their spouse decide to file for a divorce, it is important to understand how the decision to leave is considered in New Jersey’s divorce laws.

Grounds for Filing a Divorce 

In New Jersey, there is no separation requirement before filing for a divorce, so both spouses can live in the same home and still file. However, if the couple has been living apart for at least 18 months, there is the option to file for a divorce based on separation. 

To file for a no-fault divorce in New Jersey, meaning neither spouse has to prove wrongdoing on the part of the other spouse, the only requirements are: 

  • Both spouses must have lived in New Jersey for 12 consecutive months before filing for divorce.
  • One or both spouses must have experienced “irreconcilable differences” for at least six months, and these differences must be the reason that the marriage should be dissolved.
  • The filing spouse is certain there is no way to reconcile these differences. 

A fault-based divorce in New Jersey means the spouse who files for divorce has to prove that the other spouse has done something wrong. Examples of fault-based grounds include adultery, extreme cruelty, institutionalization, and willful and continued desertion, also known as abandonment. 

If a spouse decides to leave the marital home, this alone is not grounds for abandonment. The spouse who did not leave can file a divorce on grounds of abandonment if all of the following are true: 

  • Their spouse has been gone for at least 12 consecutive months.
  • They did not agree to the separation.
  • They were not the reason that their spouse left the home.
  • When their spouse left, they did not provide child support or other financial support, or continue their responsibilities in the household, such as the mortgage or utility payments.

Fault-based divorces are generally more time-consuming and expensive than no-fault divorces.

Impact of Separation on the Division of Property and Assets 

Unless a spouse can be held responsible for the negative economic situation of their former partner, the court generally will not take fault into consideration when deciding on the financial issues between the parties.

The division of property and assets in New Jersey is decided based on the principle of equitable distribution. Marital assets – all of the property and other assets acquired during the marriage – are divided equitably. This does not necessarily mean the assets will be split equally between both parties. According to N.J.S.A 2A:34-23.1, the court will consider many factors before deciding the equitable division of assets, such as: 

  • The duration of the marriage 
  • The income or property that each party brought to the marriage 
  • The standard of living established during the marriage 
  • The economic circumstances of each party during the divorce process 
  • Any other factors that the court may deem relevant 

The court will evaluate several factors before ultimately deciding how the marital home is divided after the divorce is finalized. If a spouse leaves the marital home and does not contribute or contributes less to the mortgage and other house-hold payments, this could negatively impact the division of the marital home for the spouse who left. 

The court will also consider other factors when deciding on the division of the marital home, such as: 

  • The economic circumstances of each party 
  • Child custody arrangements 
  • The age of each party 
  • The debts and liabilities of each party 

Leaving the Home as a Domestic Violence Victim 

The decision to leave one’s home is an entirely different question for victims of domestic violence. Leaving the marital home is often more of a decision about safety. Domestic victims should prioritize their safety and understand how to safely leave their home.

How to Safely Leave the Home 

If a victim is in immediate danger, they should contact 911 immediately to help them leave the home and find safety. If a victim is worried about their financial stability after leaving, prioritizing their safety should still be the first step. Once they are safe, there are resources and services in New Jersey for domestic violence victims, such as housing and shelter, counseling, medical accompaniment, and food.

Domestic violence victims can also contact the New Jersey Domestic Violence Hotline for confidential support, referrals, and crisis intervention and escape strategies.  The phone number for the New Jersey Domestic Violence Hotline is 1 (800) 572-SAFE (7233), and it is available 24 hours a day, seven days a week. The United States National Domestic Violence Hotline is also available for victims by calling  800-799-7233, or texting BEGIN to 88788.

Filing for a Restraining Order 

To protect themselves, a victim of domestic violence should file for a restraining order by visiting the Family Division Office of the Superior Court in their county, in the county where the domestic violence occurred, or in the country where their partner lives. There are two types of restraining orders: 

  • Temporary restraining (TRO): stays in effect until there is a court hearing for a legally filed divorce where a judge can talk with both parties. 
  • Final restraining order (FRO): stays in effect permanently unless the court changes the order. Child custody can also be requested as a part of a restraining order.

Victims can also call their local police department if the court is closed or they do not have transportation to get to the court. At the police station, victims will have the option to file a criminal report against their partner.

Options for Separation Other Than Divorce in NJ

In New Jersey, there is technically no “legal separation” as there is in some other states, but both parties can sign a separation agreement. A couple does not have to live apart to sign a separation agreement, but they can if they want to.

Each party should consult an attorney before doing so. A separation agreement that is correctly prepared and notarized can act as a legally binding separation that divides marital property and settles issues between the parties, such as child custody and support, property, and alimony.  

Note that this form of separation is not an official divorce. However, if the couple decides to pursue a divorce later on, the separation agreement can usually be incorporated into the divorce judgment. 

Another alternative to divorce is a trial separation. A trial separation is an informal agreement in which spouses live separately. Couples who choose this option generally do so because they want space to assess their relationship. 

In New Jersey, there are no legal obligations for a trial separation. Rather, it is an entirely voluntary agreement, and the couple will have to determine how to settle the financial and practical issues of being apart.


Is leaving the marital home prior to divorce grounds for abandonment?

No, solely leaving the marital home is not grounds for abandonment. However, it can be grounds for abandonment if:

You leave the marital home for at least 12 months
Your spouse did not agree to the separation
Your spouse was not the reason that you left the home
You did not support your child or children once you left, and you did not uphold your responsibilities in the house, such as making joint mortgage payments.

How can I protect my interests if I leave the home now but file a divorce later?

You should keep records of all of the contributions and payments you make to the household, and to childcare if there are any children in the marriage. You should also bring all important documents with you to your new residence to ensure you have access to them if you do end up getting a divorce. These documents should include forms of personal identification, bank statements, tax statements, lease agreements, and employment contracts, among others.

How should I handle joint financial obligations if I leave the house?

It is highly advised that you continue to meet any and all joint financial obligations, such as mortgage payments and utility payments. This will avoid legal complications if you or your spouse do decide to get a divorce. It will also protect your credit.

What should I do if my spouse tries to prevent me from leaving the home? 

If your spouse tries to prevent you from leaving the home, you should try to settle the dispute before getting a court involved. You are under no legal obligation to stay in the home while still married. However, if your spouse’s attempt to keep you at the house has become violent, or you feel you are unsafe, contact 911 immediately. If you are a domestic violence victim in this situation, call the New Jersey Domestic Violence Hotline at 1 (800) 572-SAFE (7233).

How a Rosenblum Law Attorney Can Help 

If you are contemplating filing for a divorce, you can have all of your questions answered at Rosenblum Law without hiring a divorce attorney. Our firm provides strategy sessions for those who are unsure about divorce but have questions about preparation, such as the decision of whether or not to leave the house. 

You don’t have to know you want a divorce to speak with one of our attorneys about your options. One of our compassionate, experienced attorneys will answer your questions, inform you of your legal options, guide you through the potential divorce process, and work with you to ensure you are making the right decisions. This can prevent costly or catastrophic mistakes if you or your spouse end up filing for a divorce.

A strategy session is $250. If you decide to hire us to file for a divorce, this charge will apply to your retainer fee. Be confident that you are making the right decisions before a potential divorce, and contact us today to schedule a strategy session.

A mother and her child leaving the house.
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