To Leave or Not to Leave, That is the Question

Many potential clients calling our firm have asked one uniform inquiry: "I've been told that leaving the marital home is considered abandonment in California. Is this true?"

Sometimes people just need some time apart to clear their heads or think things over. In more serious situations if abuse is involved there is no choice but to leave. However, leaving the marital home has different consequences.

California is considered a no-fault state meaning that no specific fault has to be shown by one party when asking the court for a divorce. Instead, the most common reason when asking for a divorce is "irreconcilable differences." Therefore, if a person asking for a divorce says they want a divorce because the other person "abandoned" the family home when they just left, it will be insufficient.

The fact a party left the family home can have other implications; the biggest dealing with child custody. Just up and leaving the family home without the children can give the party with whom the children stay a strong argument for why they should be the primary custodial parent. The general opinion is: if they were good enough to entrust the children with when you left home, why make any changes to the arrangement?

Often situations can involve an immediate need to leave due to violence. If this is the situation, you should consider filing for temporary restraining orders and seek move out orders at this time against the abuser. If appropriate, the court will make the abuser leave the family home allowing you to remain safely at home with the children.

If there is no abuse issue and you wish to leave the family home to "clear your mind," this does not constitute abandonment. However, it is highly recommended that prior to leaving the marital home ensure you discuss with the other person your intentions and how you plan on still caring for the children and be involved in the day-to-day family routine.

If you are uncertain if leaving the family home is best for you and your children contact an experienced attorney at our firm.

The information in this post is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

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