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I was Served With Divorce Papers. Do I Have to Move out of the House?

No. Just because you are served with divorce papers does not mean you have to move out of the marital home. The filing of a Denver divorce is nothing more than getting the case officially started and service is nothing more than obtaining personal jurisdiction over the other party. The only way you would be forced to move out of the house would be if there were court orders requiring you to do so. Orders do not enter just because the case if filed.

Though you do not have to immediately move out of the house, a court could enter temporary orders regarding temporary use of the marital home. This would generally occur after a temporary orders hearing is held. Temporary orders are generally set to occur within a few weeks of your mandatory initial status conference. In some cases on spouse might ask for temporary use of the marital home. This type of request is often made if there is arguing or extreme tension between the parties, or perhaps spilling over in front of the children. Again, any order to vacate would generally be weeks after filing and service. The court awarding temporary use of the martial home to one party, at the exclusion of the other, has nothing to do with final allocation of the home or division of the equity. Those issues will be dealt with at the final permanent orders hearing.

The other instance in which you might be required to vacate the marital upon service of a divorce would be if you were simultaneously serviced with a restraining order. When there are allegations of domestic violence, threats, or harassment, one party might seek a protection order at the outset of a divorce case. When this occurs, there will generally be a hearing, on the merits, to determine whether the protection order will be made permanent. The hearing must occur within two weeks. If the restraining order is dismissed you should be allowed back in the home, though should be extremely cautious to prevent future allegations.

At Plog & Stein, P.C., we generally advise our family law clients to remain in the marital home as long as they can, particularly if there are children. There are, of course exceptions, such as when there are legitimate safety concerns due to the behavior of the other party. Safety always supersedes strategy. With kids involved, leaving the home could mean that one parent is at the mercy of the other to see the kids until temporary orders are established. Leaving the home absent agreements as to furnishings or household items could leave a spouse in the position of having to trust that the other will not dispose of or damage items. Finally, though the lay adage, “possession is 9/10 of the law” does not really apply, sometimes being out of the house for months or more while your case progresses could give the other party the upper hand should there be a battle over who ultimately keeps the home. Those battles are rare.

When you are served with a divorce petition it’s important to contact an experienced divorce attorney in Denver to understand your rights and options before making any uninformed decisions which could impact your case down the road.

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