To Move or Not to Move (out of the house)

In this episode of I Do Until I Don’t, Josh and Marvin discuss a key early divorce dilemma: Is it better to stay in the home while a case unfolds, or to move out right away?

This episode walks through the emotional, legal, and financial considerations that come into play when separation is imminent. From explaining why staying might be better in the long run to why an order of protective may not be in your best interest, Josh and Marvin offer realistic guidance grounded in courtroom experience and practical strategy.

Key Moments:

0:59 – Scenario: A potential clients asks if they can leave the house before filing.

2:41 – What happens if you leave without an order?

4:00 – What to consider before moving out if you have children?

5:13 – Can the court kick you out of your house?

6:13 – What’s the legal standard to get someone out of the house?

7:05 – Should you get an order of protection?

9:35 – Marvin reiterates his recommendation to stay in the house.

10:45 – How learning to dive and holding your breath relates to staying in the house.

11:51 – The importance of understanding financial circumstances.

12:43 – Why the house is an emotional piece of property.

13:48 – Josh and Marvin return to the original scenario and wrap up the episode with their recommendations.

Transcript:

Marvin: If things are super toxic, things being thrown at you, words that are just mentally abusive, or the kids are caught in the middle of all this emotional trauma. You’re stuck between I want to get out of this house and reliving the War of the Roses.

[music]

Marvin: Welcome to another episode of I Do Until I Don’t. I’m Martin Mendez.

Josh: I’m Joshua Stern. We’re with Stern Mendez. Go figure.

Marvin: Look at this. Our first use of this box. Pretty cool, huh?

Josh: And we’re going to talk today about when you should move out at the start of a case, which is a very common issue and actually a somewhat complex issue despite being very easy to articulate. Uh, there’s a lot of considerations and frankly a lot of human emotion that’s going on here. You know, people are tense, they’re worried, and more than not, they’re uncertain. There’s a lot of things up in the air before a case gets filed, before it goes in front of a judge, before you have a parenting plan. And so, we’re going to talk about what to consider and how to go about it. And this is where I hand the basket over to you. I’m a potential client. I come in, things are tense at home. Let’s say I have two kids, and you know, we aren’t getting along. I’m on the couch, or she’s in the guest room, whatever it might be. I want to separate as soon as possible, but I don’t even have a lawyer, much less a case. What would you tell me?

Marvin: I think it’s such a complicated process, right? Because you’re going through a lot of emotion. You’re going through a lot of anger. You want to choke each other. You want to kick the other person out of the house. You want the other person to help as much as you can if you have kids involved, for example. And then you’re stuck with having to deal with the financial component. Can I afford two homes? Can I go buy a separate home? Do I rent a home? I don’t have any answers on what the potential parenting schedule may be. I don’t know what I’m going to be on the hook for, potentially maintenance, child support, dividing assets. What can I afford? And so you’re stuck between I want to get out of this house, keep things peaceful, and you’re stuck between being in the same home and reliving the War of the Roses situation. I don’t want to leave the house. Oh, you don’t want to leave the house? I’m going to make things very uncomfortable for you. Right? So, you are stuck in a situation, and I think, you know, we were talking about this yesterday. It’s a lot easier to give people advice as an outsider looking at (Right) because you, from an outsider, are being pragmatic, are being reasonable, are not making emotional decisions. So, what do I say to clients in that situation? For me, I think very early on in the case, I’m always trying to encourage people just stay in the house. Let’s figure out what a potential temporary schedule is going to be, what the two of you can potentially afford financially, what the ultimate goal is going to be. I think if you get out of the house quickly without an order that sets forth some parenting time or some financial responsibilities, you’re then looking at how to get parenting time that the other person may interfere. Because I’ve been on both sides of the coin. (Of course) I’ve been on the side of well, there’s no order in place, so you don’t have to give him or her any parenting time. And then, unfortunately, you feed into that people’s ego, right? I think the logical solution is, if you want to have a peaceful situation, let’s figure out a temporary parenting schedule. Let’s stay, like you said, one on the couch, one in the guest room, whatever it may be, and let’s figure out how to share responsibilities or try to maintain the status quo as much as possible. So, from the early onset of a case, I discourage anyone leaving the house. I think if things are super toxic, right, if you have, you know, things being thrown at you or words that are just mentally abusive, or the kids are being caught in the middle of all this emotional trauma, I think it’s probably just better to get out and go somewhere, and we can figure out a solution. (Yeah.) Because everyone’s always scared of, well, if I leave now, I’m not going to see my kids. Sure, on a temporary basis, you won’t, right? But then the court ultimately gets to it. But…

Josh: Ultimately. Ultimately, it could be 3 months, it could be 6 months. So, I mean, you know, think about it. You’re in a position now where you need permission. I wake up, I go downstairs, I see my kids, life’s good, I move out, I can’t go downstairs and see my kids. I got to go to the Daley Center, and I got to ask someone, “When is the next time I can see my own kids.” Uh, I think you know, there’s kind of two considerations that you raised that are I think really compelling. One would be sort of the uncertainty or opaqueness of the early phases. So where could you move? Are you renting or buying? What’s your budget? When can you see the kids? Are you in the same school district? About a million things. And then you also have, I think the more immediate what is the emotional harm that you’re experiencing being at home. Really, I’m going to elaborate on all your points because I agree we kind of work backwards. How do you want the case to end? What are your objectives? What are we trying to accomplish for you? And then working from there, when should you move? How should you move? And you know, is holding out to be well situated in the case worthwhile, or is the cost, the conflict, and the stress just too great? And you say, you know, look, this is the optimal outcome for the case. But man, if I spend another day here, I’m going to pop. In that case, the conversation changes.

Marvin: You know, I think the difficulty in telling the clients to just go ahead and get out or tell the other person to kick him out, right? Is that a court can’t kick you out of your house. (Exclusive possession.) Sure. But that’s a very high bar. (It is.) You can’t just say, “Well, this person makes me feel uncomfortable.” (No.) Right. Or this person… (They don’t load the dishwasher.) plays their music loud. (Yeah.)

Josh: The music thing I think you could act on if it’s too loud, but I won’t get into that. I really, you know…

Marvin: I don’t think this is a time for personal stories, but… (laughter)

Josh: Bad neighbors. No, I mean, but there… So, I… that’s an interesting side note of sort of like the gradations of harassment. When is something an annoyance and when is it intentional harassment? But that’s a kind of a different podcast.

Marvin: How sensitive do you think the courts are to… (non-physical abuse?) folks with sensitivity, right?

Josh: It’s so… I mean, come on, right? So judge dependent, so day dependent, it’s a lawyer dependent. How do you articulate it? What can you explain? But no, I mean, look, your personal hang-ups, your little pet peeves. I don’t like it when he gets up early and runs the uh the garbage disposal. No one cares. That doesn’t, you know, that’s not actionable.

Marvin: What’s the uh legal standard, should we say, to get someone out of the house?

Josh: Usually, you’re looking at a form of harassment. You’re looking at a situation where it would be in the best interest of the child, or of the moving party, to get separation due to either unlawful or, I’d say, unjustified behavior.

Marvin: God, that’s such a lawyer response.
(overlapping)

Marvin: So much ambiguity and vagueness.

Josh: Yeah. So, like you said, you just said, “What is the legal standard?” (laughter)

Josh: Well, if you don’t like them… No, but I mean, (But it’s reality) the reality is it’s a high bar. You have overlapping property interests. You’re talking about depriving someone of use of a very, perhaps their largest asset, and their only form of shelter. And so, to put someone out of both of those things, to deprive them of a property interest in the U.S. and to unhouse them, yeah, you need a high bar because it’s, it’s tough, man. And the reality is there are situations where it’s appropriate, but it can and has been weaponized inappropriately plenty of times. Courts are going to scrutinize it. Back in the day, and I don’t know how common it is, a lot of cases started with orders of protection. It was a lot of people’s opening move instead of an exclusive possession. And it was a huge problem. I think they’ve tamped down on that quite a bit. But I mean, let’s be real about what we’re talking about, you know.

Marvin: And I think pursuing a frivolous order or protection [Oh, god.] that then is not proven to be… [Right.] right or real, right? Then there goes your credibility. [That’s total self harm.] Your first thing is, wait, so you use this order of protection to get this person out of the house, to keep them away from the kids, to manipulate the parentage component. Sure, you get your immediate result, instant gratification. [You get the 21, probably. Right.] You get her out of the house, but then down the line, legal fees, court delays, mediation process, credibility issues. [Yeah.] I mean, just the list goes on and on.

Josh: Well, you have two different ways to do fees. You bring something that’s inappropriate or without a factual or legal basis. I mean, there’s actually a variety of ways to attack it. Even with the domestic violence act. 100% hyperbole and desperation kind of put people in bad situations, and I think the desire to get separated immediately because of emotional discomfort, totally valid. It is a horrible situation people in. I’m sympathetic. I wouldn’t want to be there. But from a legal perspective, we have a myriad of considerations in addition to that.

Marvin: Human ego can be very sensitive, and I think your ability to stay in the house, or not, really depends on a lot of that. [Yes.] Uh you know it’s, well, like you said, the dishwasher wasn’t done when I said and you get to be done, or he looked at me one way, or she said things the other way. [Right.] I think what mostly gets impacted in the situations, if you have children, are the children. Now, a lot of kids when divorce comes up, they’re like, I saw this coming, you guys are better off apart. But a lot of time they’re stuck in the middle of dealing with mom’s anger, dad’s anger, the parents anger. You come with me. And people tend to manipulate that process, involve the children, and impact them. And I think, you know, the interesting thing about that is then if you’re in the house, now the other person uses this as a weapon. Well, look how he’s treating the child. Look how she’s using the child. Look how she’s alienating the child, or he is doing that. So, at the end of the day, when someone comes to me and says, “What do I do? This is absolutely miserable.” My advice is always stay in the house. No one can kick you out. Don’t create any issues that would warrant a frivolous order of protection because anything you do or say or yell will trigger somebody calling the police and then escorting you or saying, “Let’s just go our own directions.” My goal is always to tell people: Stay in the house. Put your ego aside. Do not fall for any bait, right? That they’re laying for you or any trap that’s going to trigger your emotions. Just walk away. Let’s figure out what’s more important. You getting out of the house or figuring out a temporary parenting or financial schedule. And you will see, I think, that the more you’re in the house once a divorce is filed or proceedings are started, the less the other person wants you in the house and the more that they are desperate to come up with any temporary solution to get you out of the house. Otherwise, you’re stuck there for… How long does a divorce case take nowadays? [I don’t know.] I mean, I’ve had cases wrap up in a month because everybody was kumbaya, and I’ve had moments that… What are we? Three years, four years into a divorce case right now? Luckily, the parties are living separately, but we were able to get a temporary order that says: here’s what we can do under these financial circumstances. In that situation, both parties could afford to financially have separate homes. What do you do when I don’t know you had, let’s say, your garden variety of divorces?

Josh: Here, here’s how I think of it. When I was learning to swim, one of the ways they would teach you to dive is they would put different, uh like items in the pool at camp. And you dive down, you’d hold your breath, you kind of work your stroke, and you come up with as many items as you can. And the kind of the test was to see how efficiently you could dive, but also it’s kind of hold your breath. And it’s sort of, when you’re in the house, you’re holding your breath. You’re underwater. And the question is, how many things, how many issues can you resolve or make progress on before you have to come up for air and leave the house? Ideally, we can get under there, and we can deal with the discomfort. We can deal with the parenting time, the financial considerations, and really a lot of the smaller issues that would make, like personal property, separation easier. But, there’s scenarios where it’s too deep, it’s too much pressure, you can’t hold your breath anymore, and we can only do a few things, whether it’s parenting time or a temporary budget. And that’s okay, also. I mean, at the end of the day, it’s about taking care of the client and hearing what they need, and what the family needs. So, if we gotta get out, we’re going to figure it out. But if we can hang on, if we can get deep and pick up some of these points that will make a difference later, I prefer that, and parenting time being the most important stuff.

Marvin: You know, in the financial component, I think the very important part in determining whether you stay in the house or you can afford something elsewhere is getting your client to immediately understand their financial circumstances and be transparent, right? Just give me your balance sheet. What’s your income? What are your assets? Where would you get money for a new place? Where would you stay? Can you afford a three-month lease? Do you get an Airbnb for that situation? Um, and I think them understanding that a lot sooner and then sharing that information with the partner helps then the other partner also then determine, well, I can’t keep this place. I’m not going to be able to afford it. We only make so much money. Or… [You have a lot of rational conversations about keeping the house?] I I’ve had conversations… I wouldn’t… [Yeah. Rational ones.] say rational ones. [laughter]
Josh: I mean, let’s be honest about what it is. Let’s go back to being thrown out. It’s an emotional piece of property. You love it. You bought it. You imagined a future there. It’s your shelter. You improved it. You probably spent blood, sweat, and tears making it what you wanted it to be. And all of a sudden, some guy you’ve never met before downtown says you can’t see it anymore. You’d go nuts. And so it kind of dovetails into that. I think a lot of people are irrational about the house because it has a tremendous amount of emotional import. And when you have kids, it’s not just your house, it’s the kids’ childhood home. And all of a sudden we got this big prize that kind of belies what I would call it simplicity on the balance sheet, which is it’s an asset. To your point, I do think figuring out whether you can keep the house is smart…it’s incredibly important and probably an early consideration.

Marvin: I think it’s an early consideration, and I think that’s why it’s important that families have some semblance of understanding of their respective financial circumstances, not in anticipation of divorce, but really just understanding how the family finances work. Such that if events like this were to happen, someone dies, let’s say, unfortunately, can I afford this? What’s the lifestyle going to be? How are we going to manage these particular situations?

Josh: Well, hold on. I started this by saying, what if I was a client coming to meet you? [Yeah.] And I wanted… I had two kids, I’m sleeping on the couch. So, what was your advice to me, now? [It depends.] I want to leave, you know. [laughter] And that’s all we got for you today. [more laughter]

Marvin: My advice would be very specific. [Yeah.] Do not leave the house [Yes.] until we can come up with some sort of agreement as to how the finances are going to be managed, what a temporary parenting schedule may look like. [Yes.] And where how close you may be to the family. [Right. 100%] I think that’s my biggest response to everybody. [Yes.] Do not leave yet. If you leave the house right now, it’s going to be a lot harder and it’s going to take a lot longer to get you a temporary financial outcome, or a temporary parenting schedule. And I think that’s the importance in this particular topic, it’s a temporary schedule. [Yes.] Meaning we’re going to put a band-aid on this until we come up with a full resolution, and that’s going to take a while. But in the meantime, before you leave, we shouldn’t be leaving the house without you knowing what a potential schedule’s going to be. Whether you can manage that schedule, right? Because a lot of people are always like, ‘I want this, I want this, I want this.” Then they realize, I can’t manage this. I have to work. I have activities. I have commitments. You know, because in a normal day schedule, you said earlier, I’d like to wake up and see my kid every morning. [I would love that.] Sometimes, I don’t know, if you’re like me, I don’t see my kid because she gets out and she’s gone, or when I come home. [Sounds like she’s running away.] No, but she’s got her own activity. [laughter] She wakes up at a different time than I do, right? Normal life is a lot different than when it is divorce. [Yes.] When you’re going through divorce, you think you can pick up the kid, have overnight, [Right.] have you know, your 7:00 meals, which is just doesn’t make sense, right? [No.] Kids doing homework or whatever activities, and you think you can do much more than what you’re normally accustomed to. So, I think there needs to be some sort of understanding of what you can do. [Yes.] You know, stress-test some of the stuff. Fine, you want the schedule? What’s it going to be like? Are you going to be on time? Are you going to be late? What issues am I going to foresee if you can’t fulfill your obligation? [overlapping]
Josh: Are you in the same school district? Can you get them to school in the morning? Can you pick them up? [Exactly.] But look, the short version, and I, you know, we could do this all day, is don’t move out right away. Don’t move out because you’re anxious or concerned. Speak to a lawyer, make a plan, and it’s part of your holistic approach to the start of the case. They will walk you through the considerations and how to get prepared for whatever you need to do to separate.

Marvin: Yeah. And don’t expect an immediate resolution for a temporary order.

Josh: Just don’t expect immediate resolution in domestic relations court. It’ll be easier.

Marvin: Yes. All of that.

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