As a divorce lawyer, I get asked the question in the headline above pretty often.
First and foremost, if you and/or your children are experiencing family violence, you should ignore what these (likely well-meaning but probably uninformed) people are telling you and move out of the house along with your children. Your safety and your children’s safety should take priority over everything else.
For more information on what constitutes family violence (which is not limited to physical violence), as well as links to resources for those experiencing family violence, please see this helpful website by the Legal Services Society, the organization that provides legal aid in B.C.
If family violence is not a concern, then there are probably a few reasons why you’re being told not to leave the house after a breakup, including the following:
Setting a precedent
If your children stay behind in the house with your ex while you move out and find another place to live, you run the risk of creating a status quo where your children are now living primarily with your ex, and the longer that situation remains in place, the harder it will be for you to try to change those living arrangements later on if you want your children to live primarily with you. Courts are reluctant to disrupt children’s lives any more than is necessary, and usually don’t order drastic changes to a parenting schedule unless there are safety concerns.
Some parents are concerned with being accused of “abandonment” if they move out of the house and leave the children in the primary care of their ex. Abandonment isn’t actually a legal concept in the context of a separation/divorce in B.C. A court is not going to deem you an unfit parent, nor will a court order that your ex gets more out of the property division, or anything of that nature, solely because you moved out of the house.
So if you are contemplating moving out of the house, don’t worry about whether or not you will be judged negatively for doing so by a court (you won’t). Instead, you should think about the precedent you are setting with your children’s living arrangements. One way to resolve this issue is to come to an agreement (preferably in writing, and with the assistance of lawyers) on what the parenting schedule will be before you move out.
Retrieving your belongings
If you move out of the house after a breakup, you’re probably upset over the relationship ending and perhaps not thinking about packing anything other than your basic necessities. When you move out of the house and leave your personal belongings behind, or leave behind items too large or inconvenient to move at the time, it can be more difficult to get back into the house later to retrieve them. This is especially true if your ex changes the locks after you leave.
I am often asked whether it’s legal for a person’s ex to change the locks, especially where the house is in joint names. The short answer is, if you both jointly own the house, then you both have a legal right to access the house. The long answer is, it can be a complicated (and costly) process to regain access to the house if your ex won’t cooperate. The police usually don’t involve themselves in these sorts of situations, leaving you with no choice but to hire a lawyer to try to reason with your ex or to go to family court to try to get a court order to force your ex to let you back into the house. Oftentimes, the money you spend going to court is more than the value of the belongings you’re trying to retrieve in the first place.
So if you do move out of the house, take the time to think about what you want to bring with you, because you may not be able to retrieve anything additional later.
On a related note, if you are married, your lawyer is going to need your original marriage certificate in order to later obtain your divorce order. If you are moving out of the house, be sure to take the original marriage certificate with you so you can give it to your lawyer later, otherwise you may have to pay to obtain a certified copy from the jurisdiction where you got married if it becomes impossible to later retrieve the original certificate. This can get particularly complicated (and expensive) if your marriage certificate was originally obtained in a foreign jurisdiction.
Access to financial documents
Financial information is very important for any family lawyer helping you with your separation, because that information is necessary in order for that lawyer to properly advise you about your rights regarding child or spousal support, as well as regarding property and debt division.
Financial information consists of bank statements, mortgage documents, income-tax returns and notices of assessment, and similar types of documents. These documents are usually laying around the house. Your lawyer is going to need your ex’s financial information, and if you’ve already moved out of the house, then it will be harder (and more expensive) for you to obtain that information from your ex, if they don’t want to cooperate. If you are still in the house however, then it’s a fairly straightforward matter of you making copies or taking photos of the financial documents in the house and giving those copies to your lawyer (don’t take your ex’s original documents).
As always, it’s important to remember that everyone’s situation is unique, and advice for one person going through a breakup isn’t necessarily the right advice for a different person going through a breakup. Generally speaking, if you don’t have children, aren’t experiencing family violence, already have all the belongings you wish to retain as well as your financial documents (and as well as copies of your ex’s financial documents), then there likely won’t be an issue with you moving out of the house. But it’s best to speak with a lawyer prior to moving out so that you fully understand the consequences of doing so.
A word of caution: you should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.