You can’t stand the sight of your spouse anymore. Or your spouse has told you to get out. You already know in most cases you must separate for one year before courts in Edmonton will even allow you to file for divorce.
So should you stay, or should you go? What’s your best, most strategic move in regards to remaining in your marital home?
You have rights when you separate.
Unless a court of law says otherwise, you cannot simply be kicked out of your marital home. This is true even if your name is not on the mortgage or the deed.
This doesn’t stop spouses from exerting emotional pressure on each other, of course, but it’s easier to stop, think, and make the right decision for you if you know that your spouse can’t simply evict you.
Separation does not have to mean leaving the marital home.
You can simply claim a different room in your house as your bedroom and set up your own bank account, closing your joint bank accounts by mutual agreement. Divide up the money in the joint accounts 50/50.
Live as roommates. Have no marital relations. Decide who will pay for what and split up the bills as much as possible. Have your attorney draft a formal separation agreement so it’s on paper and dated. You’ll be able to obtain your Alberta divorce when one year has passed.
Either spouse may apply for an Exclusive Home Possession Order.
If one spouse is abusing the other than there may be grounds for a judge to award an Exclusive Home Possession Order. That is the point when a court is telling one of the spouses that they must leave the home.
A judge may also award this order if the spouses cannot decide who stays or who goes. The court will take a close look at each spouse’s finances, deciding who can afford to stay and who can afford to go.
The court will also generally seek to keep the children in the marital home and will decide which parent does more of the day-to-day parenting. The best interest of the children will help to guide this decision.
Leaving does not mean losing your rights to the property, your children, or your assets.
You will still have a legal right to 50% of the marital property.
Unless you are a proven danger to your children, the courts will continue to favor arrangements that give you 50% or near-50% access to your kids.
There is still a chance you can negotiate for the family home during the settlement process.
Leaving the marital home can impact who the children live with most of the time after your divorce.
This is where the decision to stay or go can get tricky.
Usually, parents want to leave the children in the marital home to promote their stability, keep them in their school district, and minimize the impacts of the divorce.
If you’re the one that leaves you’re essentially saying that the other parent is better-equipped to be the primary care parent. After all, you just created that de facto arrangement by leaving.
Sometimes it doesn’t matter. Sometimes you’ll end up with a shared custody arrangement, where the children live with each parent roughly half the time. If not, parent will generally get something close to 50% access to their children and joint legal custody, which gives both parents equal legal rights to make decision for the children. In many cases if parents take less than 50% access it is because their own work schedules do not allow for more time.
Sole custody with limited or supervised access generally only happens when a spouse presents a proven danger to the child.
Nevertheless, if it is important to you to pursue a status as the primary care parent, then leaving the home is a bad idea.
Can you afford to leave the home?
Consider your finances before you leave. If you’re the primary wage earner the courts may well order you to pay for the marital home even though you now have to pay for a second place to live.
This is obviously less-than-ideal, and the money you spend during this period is not necessarily going to factor into the division of property later. Indeed, the money you pay out during this time could become the basis for an argument about how much spousal support you should be paying. After all, you’ve already been paying it.
What’s right in your case?
There are a lot of individual factors to consider. Don’t make assumptions. Contact your local divorce lawyer to discuss your situation before making any sudden moves.