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Separation - Who Should Move Out?

Separation - Who Should Move Out?

Posted by Avery Zeidman | Published December 29, 2015

Ending a marriage is an extremely difficult decision, and the process of separation/divorce is a stressful and arduous one. Inevitably, emotions play a large part in interactions and decision making at this time. However, once the final decision is made, it affects everyone in the household.

There are many reasons people give for desiring a separation, including, infidelity, financial issues, immaturity, a narcissistic spouse, lack of trust, growing apart, loss of passion, and so on. Whatever the reason, when a marriage has reached this point, there are many decisions that need to be made. One of the most pivotal issues to be decided, is future living arrangements. That is, who can stay and who must move out.  

Before any decision is made to leave the matrimonial home, you are well advised to contact a family lawyer at the Zeidman law offices. We offer a confidential platform on our website to ask any questions you may have pertaining to your case. Our accommodating staff can also be contacted at any time.

In Ontario’s Family Law Act, a married couple has equal rights to the matrimonial home. That means neither spouse has the authority to remove the other from the home, regardless of who legally owns the property. Please note that this does not apply to common-law relationships.

After consulting with your family lawyer, if an amicable decision about leaving the house still cannot be agreed upon by both parties, this determination must be decided in the courts. The following factors are taken into consideration in this decision.

  • any pre or post contractual obligations between the married couple

  • whether there is any physical abuse against a spouse or any other members of the family, particularly children

  • the financial standing of each spouse

  • other viable options for relocation for either spouse

  • how the proposed separation would affect any children in the matrimonial home

Because each spouse has legal rights to the house, a spouse who does not occupy the property may be legally entitled to receive “occupation rent”. This term refers to the obligational market value rent that the spouse who remains in the home has to pay the spouse who has moved out, over the period of time from the separation until the property is sold or disbursed.

Some of the issues weighed when awarding occupation rent to a spouse are:

  • the length of the time elapsed before requesting occupation rent

  • whether or not financial obligations such as spousal/child support, mortgages, etc. are being paid

  • the behavior and conduct of both the occupying and non occupying spouse

It is important to speak to a family lawyer at Zeidman Law Offices, to understand your legal rights during this time. We cannot stress the significant and negative impacts your actions can unknowingly have on your rights, both as a spouse and a parent. For example, the issue of children living in the matrimonial home.

Generally, spouses may agree, according to specific circumstances, that any children should be left in the home to help them with the impending transition from a two parent family to a one parent family. However, one spouse may feel that leaving the house may negatively impact their parental rights, sometimes even going so far as removing the children from the home.

This action is not favored in the courts and can have serious repercussions if the occupying spouse requests the return of the children. Removing children from the family home where they typically feel more secure is viewed as inappropriate and not in the best interests of children, unless there are harmful circumstances associated with remaining in the family home.  

If a spouse is considering leaving the home, he/she should ensure that a written and signed agreement is in place concerning his/her access to the children. Leaving without this in place can lead to a negative light being cast on any future efforts to gain substantial time with their children. The courts generally favor making as few changes to children’s lives as possible, unless there are issues involving abuse.

The following issues should be considered when planning a separation:

  1. If there is continuous conflict and there are children living in the matrimonial home, a physical separation may be advisable.

  2. When considering who should move out, it is important to have an open and respectful dialogue with your spouse. Issues to be weighed are: whether or not the two of you get along reasonably well within the home, whether another living space is affordable and available, where the children would most likely reside in the future and whether either of you will keep the home after the separation.

  3. There is no legal requirement to inform your spouse that you are moving out and sometimes, it may be easier for all involved if it happens when they are not at home. This choice is entirely dependent on your personal situation. However, you should speak with your family lawyer before moving out of your home.

  4. Some of the documents you should take with you or make copies of when leaving the matrimonial home are your marriage certificate, passport, medical prescriptions, insurance cards and tax returns.

  5. If there are any joint accounts, it is advisable that you request a dissolution from the bank. Because you do not want to be held financially responsible for any new purchases incurred by your spouse. If making a necessary withdrawal, do not take more than half of what is in the account.  

Deciding on where to live after a separation can be difficult. Decisions are usually emotionally fueled and can have lasting repercussions on all those involved. If you are considering getting a separation/divorce or are already separated, please call us today at Zeidman Law Offices, for a consultation that can help streamline the resolution of this period in your life.

 
 
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