If I Get a Divorce, Do I Have to Move Out?

Your home is an important part of your life, and many people invest significant time and money into building a home. Moving out of a home is an emotional and often difficult decision. What happens to the family home is a major question couples and courts have to address during a divorce.

In 2019, there were 2.7 divorces for every 1,000 people in the United States, according to the CDC/NCHS’s National Vital Statistics System. Divorce is a complicated process, and the answer to the question of whether you have to move out of your family home depends on several factors.

At The Law Offices of Steven E. Springer, we represent individuals in family law cases in San Jose, California, including Morgan Hill and the surrounding areas. Reach out to us today to learn more about how your divorce may affect your living situation.

Divorce Considerations

There are several key factors to take into account when you are determining your living arrangements and whether you should move or leave the family home, including your safety and most importantly, your children.


Your safety always comes first. If you are in an unsafe situation, you should protect yourself by leaving the home as soon as possible. Do not worry about how this will affect the ultimate decision of who gets possession of the home. It is unlikely that a court will determine who will get the house based on who lived in it in the period between when the separation began and when the divorce was finalized.


If your children are at risk of violence, it’s crucial that you get them to safety as soon as possible. Remove them from the home and take them to a safe location. Then, to avoid child kidnapping charges that your ex-partner might bring against you, it’s essential that you obtain a court order for temporary custody. 

In a situation in which the children are still safe in the home, it’s important to try to limit the disruptions to your children’s lives during the divorce process. Maintain as consistent of a routine as possible and treat your children with extra care during this time. 

The parent who stays in the home with the children will most likely argue that they need to remain in that living arrangement permanently for the sake of the children. If possible, create a written parenting agreement before either partner moves out and set up a parenting schedule. 

Living Arrangement Options

There are several options for couples who are divorcing when it comes to who will keep the home.

Both People Stay in the Home

For financial reasons, it is sometimes impossible for one of the spouses to move out of the home. Supporting a second household can just be too expensive. In this case, both people stay in the home.

Sell the Home

When the couple does not have any children, selling the home is a common part of the divorce process. After the sale, the couple may either split the proceeds evenly or according to the terms of the divorce decree.


“Bird-nesting” is when the children remain in the home and the parents take turns living there with them. Sometimes, the parents will split the rent of a nearby apartment and take turns living in it when it is not their turn to stay with the children. This is a viable option to keep you from having to permanently leave the house.

Keeping the House

The person who stays in the house immediately after the separation doesn’t necessarily get to keep the house after the divorce is finalized. In California, both spouses own the property equally after marriage, unless the property was acquired by one spouse through an inheritance or as a gift.

Factors Considered in Asset Division

When it’s time to divide assets, there are several key factors to consider. While you and your spouse can agree to the division of property and debts, the judge still has to sign off on any agreement.

The factors you need to consider include: 

  • Which assets are your property
  • Which assets are your spouse’s property
  • Which assets are community property
  • The fair market value of each item

Turn to Us at The Law Offices
of Steven E. Springer for Help

Divorce is a complex process and emotional issues such as who will keep the house sometimes create many problems. You want to be certain you’ve made the best case for yourself and your children. We want to help you build that case.

At The Law Offices of Steven E. Springer, we’ve worked with clients in family law matters for more than 20 years. We represent individuals in San Jose, California and the surrounding areas of Morgan Hill, Fremont, Hayworth, Alameda County, Santa Clara County, and Pleasanton. Contact us today to schedule your free 20-minute consultation.

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