At Cordell & Cordell, we advise our clients on the perils of moving out of the marital home before or during your divorce. In fact, it's listed as one of "The 10 Stupidest Mistakes Men Make When Facing Divorce" in Cordell & Cordell co-founder Joseph Cordell's book.
The party that moves out is less likely to receive primary custody of the children, less likely to be granted possession of the marital home by the judge, and has little control over what is done with property located inside the home.
But if you smartly refuse to move out and your wife, in all likelihood, also refuses to leave the home, what are your options to get her to move out so you are not stuck sharing a living space with the person you are least likely to want to see?
In order to best protect yourself and your children, you may wish to file a petition for legal separation while you are considering whether to move forward with a divorce. Once a petition for legal separation has been filed with the court, you may move forward with requesting a preliminary hearing.
At the preliminary hearing, you may request that you be awarded temporary possession of the marital residence during the pendency of the separation. Should the court grant this request, your spouse will be required to move from the marital residence.
There are several factors that the court may consider in awarding this, such as the resources available to both parties, whether either party has family or close friends in the area with whom they could reside, which party will be awarded primary physical custody of the child, etc.
The filing of a petition for legal separation is also a way to financially protect your property and in the event you move forward with a petition for dissolution, the date of filing would be established to capture the snapshot of what your estate consisted of at that date and that is what can be divided between the two of you.
At that point, if you were to use your separate income and purchase property, that property would likely be excluded from the marital estate if you moved forward with a divorce or it may be added and considered marital property if you dismiss the legal separation and resume your married lives.
You may also file a request for a temporary restraining order, which would restrain both parties from transferring, selling, disposing of marital property and would preserve the marital estate.
Your best recourse would be to seek out immediate legal assistance from an attorney who focuses on domestic litigation such as the attorneys at Cordell & Cordell.