One of the most challenging as well as emotional issues in any divorce is the division of marital property, in particular the home. A couple may have worked hard for many years to buy a house together. They have many shared memories and sentimentally valued objects within its walls that add to the complexity of the dispute. The marital home is usually the single most significant asset in a marriage, and the hardest to divide fairly. Often both parties are reluctant to be the first to move out -- afraid that in doing so, they will jeopardize their stake in the property division.
Sensationalist news stories fuel these fears, but often misinform the public. In the recent drama between reality TV stars Bethenny Frankel of Skinnygirl renown, and Jason Hoppy, a pharmaceutical sales rep, the couple has been living together in their shared $5 million Tribeca loft since filing for divorce in January. While we can only guess their reasons for choosing to live together in what must be a stressful domestic situation, one of the speculations made by some tabloids -- that moving out could be grounds for an "abandonment" allegation that could result in forfeited property rights-- is unfounded: New York became a no-fault divorce state like Massachusetts in 2010. In no-fault states, a shared residence is considered joint marital property regardless of who leaves it during the separation process.
However, don't start packing your bags just yet. The situation can be further complicated if children are involved, as they are in the case of Frankel and Hoppy, who share their apartment with their two-year-old daughter and are in the midst of a custody dispute. The issues of custody and property division are technically separate, but in reality, are inextricably entangled. If one parent leaves the house, an unwanted "primary parent" situation may be created by default. To further complicate matters, divorce laws can vary from state to state.
Divorce is a difficult decision and an even more taxing process, and it can be tempting to research matters on your own. To avoid any unwanted surprises such as loss of valuable assets you've worked hard for, or additional essential concerns like loss of access to your children, it's essential to speak with an attorney who specializes in the division of marital property.
Source: Forbes, "Should You Move Out Of The Marital Home? Learn From Divorce Attorneys, Not The Tabloids" Jeff Landers, Jun. 11, 2013