Do you have to leave the family home in a divorce?

Fashion designer Mary-Kate Olsen, a former actress and child star best known for her role in the 1980s sitcom Full House, made headlines recently when husband Olivier Sarkozy filed legal paperwork requiring her to leave the pair’s shared New York City apartment in the midst of their divorce struggle.  Although few of us have the wealth and resources of a French banker and lifelong entrepreneur, many couples struggle over who should stay in the home during separation and after divorce.

Consider these factors if you are unsure whether you should continue to cohabitate with your spouse while you prepare to end your marriage.

Finances and property division

Many people who have decided to divorce worry that if they leave the family home, they will lose their rights to the property. In fact, Colorado does not consider current possession of the house and other assets when determining a fair division of marital property. If your spouse refuses to leave and you feel more comfortable staying in a short-term rental or with a friend, this decision will not affect your ability to keep the home if you want to do so.

Child custody

Because Colorado courts favor stability for minor children, a parent who stays with the kids in the family home may have the advantage over a parent that leaves the house in terms of retaining the property. In a hostile environment, however, you and your attorney can present evidence to show that leaving served the children’s best interests by creating a more peaceful home.

Safety and security

While many divorcing couples experience tension, anger and other difficult emotions, the situation can escalate if one spouse threatens or commits violence against the other spouse, children or even pets. If you are in this situation, you and other threatened family members should leave the house immediately and file for a protective order. If you have children, you should also seek an emergency custody determination.

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