Is there a requirement that a spouse move out of the marital home after the divorce case is filed?
Updated: Jan 6
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No. After the Petition for Dissolution of Marriage or Legal Separation is filed, there is no automatic requirement that either party move out of the marital home. As surprising as this may be, many divorcing spouses continue to live together in the marital home until there is a final resolution in the case. Often, financial constraints do not allow for the option of one spouse to move out and pay rent for another residence.
If living with a spouse during the divorce process is not a reasonable option, the first alternative is to attempt to get agreement with your spouse on one of you moving out of the marital home. This would include agreeing on how to pay for the new living arrangement. The decision for one spouse to move out of the home may or may not have implications on the financial outcome and parenting outcome in your case. Prior to making this decision, you should speak to an attorney about your specific situation.
If an agreement cannot be reached and a spouse wishes to have exclusive access of the marital home, then the spouse must request a temporary orders hearing to have the Judge decide if they receive exclusive use of the home. There is no hard and fast rule on who receives exclusive use of the home or if anyone will.
A temporary orders hearing is a contested hearing where a party must present evidence through testimony for the judge to decide the issues at hand. A temporary orders hearing is a costly addition to the divorce process and usually should only be pursued if there is a high need and high likelihood of success or if there are other temporary orders issues to address—such as the need for a temporary parenting plan, temporary child support, an order on payment of marital expenses, and requests for spousal maintenance.
The Judge’s decision at a temporary orders hearing is only binding during the pendency of the case and is not determinative of any of the issues for the final orders hearing. This means that all of the same issues from the temporary orders hearing can be re-tried at the final orders hearing.
Sorting out the living situation during divorce is an important and sometimes difficult process to navigate. Each case is unique and you should contact an experienced divorce attorney to learn how Colorado law applies to the facts of your case.
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