One question that comes up from clients very frequently is will the Court find I abandoned my home and forfeited any claim to it if I move out while my divorce is pending. The short answer to this is no. This will not change how the court evaluates whether the home is part of the marital property to be divided during an equitable distribution of assets and liabilities in a divorce. In fact depending on the circumstances moving from the home during the pendency of the action may be a good decision especially if there is a history of domestic violence during the marriage or if a spouse is fearful of the other. It is best to get specific advice from your lawyer on this before making any decisions, however, especially if there are children involved. At times it may be proper to seek temporary exclusive use and possession of a marital home during the pendency of the action as occurred in the case of Kranz v. Kranz, 542 So.2d 1011 (Fla. 3d DCA 1989). In that instance the District Court affirmed the temporary order and stated in that instance that it was unlikely that the parties could peacefully live together and that it was in the child’s best interests to remain with her mother. Still other cases have held that the standard for temporary exclusive use and possession is higher than that as pointed out in the dissenting opinion of this case citing Daniel v. Daniel, 236 So. 2d 197 (Fla. 1st DCA 1970) holding as a matter of law to justify the granting of this relief evidence of quarreling or fighting between the parties, or [an] adverse effect upon the children must be shown. As Daniel makes clear, neither spouse should automatically be deprived of his or her emotional and property interest in the common residence at the commencement of the case merely because of the existence of the dispute itself; to do otherwise is to pre-judge the case by depriving a litigant of valuable interests before any determination of the merits. It is important to discuss your particular situation in detail with your counsel so that advice and a strategy may be tailored to your specific situation.
