To Stay or To Go? The Housing Question in Divorce | Episode 234

Should I Stay or Should I Go? Moving Out During Divorce

In this episode of Divorce at Altitude, Ryan Kalamaya and Amy Goscha discuss one of the most common and difficult early decisions in divorce: whether one spouse should move out of the shared home. They break down the legal, emotional, financial, and strategic factors that go into this decision, emphasizing that there is no one-size-fits-all answer.

Episode Highlights

Why this is such a common question
When couples begin the process of separation, they are often still living under the same roof. This creates tension and uncertainty, leading many people to ask whether they should leave, stay, or try to make the other person move out.

Safety should always come first
Ryan explains that the number one consideration is safety. If there are escalating arguments, substance use, or any risk of domestic violence, continuing to live together can be dangerous. In those cases, creating physical separation can significantly reduce risk.

The impact on children
Even when there is no physical conflict, a toxic or tense environment can negatively affect children. Amy highlights that parents need to consider whether the home environment is emotionally stable enough for kids during this transition.

When moving out may make sense
Moving out can help reduce conflict, especially in high-tension situations or when one party has started a new relationship. It can also create space for both parties to begin adjusting to a new routine.

Reasons to consider staying in the home
Ryan notes that financial realities—especially high housing costs—can make moving out difficult. Some couples are able to live separately within the same home, which can reduce immediate disruption and allow for a smoother transition for children.

Understanding nesting arrangements
Amy explains “nesting,” where children remain in the home and parents rotate in and out. This can be a creative short-term solution, especially in homes with separate living spaces like lock-offs or guest units.

Moving out does not mean losing your rights
A key myth addressed is that leaving the home means giving up legal rights to it. Both Ryan and Amy emphasize that there is no automatic legal disadvantage to moving out when it comes to property division or custody.

What is Divorce at Altitude? 

Ryan Kalamaya and Amy Goscha provide tips and recommendations on issues related to divorce, separation, and co-parenting in Colorado. Ryan and Amy are the founding partners of an innovative and ambitious law firm, Kalamaya | Goscha, that pushes the boundaries to discover new frontiers in family law, personal injuries, and criminal defense in Colorado. 

To subscribe to Divorce at Altitude, click here and select your favorite podcast player. To subscribe to Kalamaya | Goscha's YouTube channel where many of the episodes will be posted as videos, click here.  If you have additional questions or would like to speak to one of our attorneys, give us a call at 970-429-5784 or email us at info@kalamaya.law.

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DISCLAIMER: THE COMMENTARY AND OPINIONS ON THIS PODCAST IS FOR ENTERTAINMENT AND INFORMATIONAL PURPOSES AND NOT FOR THE PURPOSE OF PROVIDING LEGAL ADVICE. CONTACT AN ATTORNEY IN YOUR STATE OR AREA TO OBTAIN LEGAL ADVICE ON ANY OF THESE ISSUES.

Transcript

Ryan Kalamaya 0:02

Hey everyone. I'm Ryan Kalamaya. And I'm Amy Goscha. Welcome to the Divorce at Altittude, a podcast on Colorado family law. Divorce is not easy. It really sucks. Trust me, I know. Besides being an experienced Divorce attorney, I'm also a Divorce client. Whether you or someone considering Divorce or a fellow family law attorney, listen in for weekly tips and insight into topics related to Divorce co-parenting And separation in Colorado.

Ryan Kalamaya 0:02

Welcome back to another episode of Divorced at Altittude. This is Ryan Kalamaya. This week I am joined by my esteemed co-host, Amy, what's going on?

Amy Goscha 0:15

Oh, it's just a Friday afternoon and we're recording some awesome podcasts. I'm really interested in this topic because I think I get this question all of the time. What are we discussing today?

Ryan Kalamaya 0:27

We are talking about the clashes song. Should I Stay or should I Go? For any, I'm not gonna even try to sing it, but for listeners of The Clash, they'll immediately recognize and know what I'm talking about. But no, we are talking about whether or not people should move out. When they're cohabitating, when they're living together, presumably we do have some divorces or separations where people have been separated for quite some time, but most often the case people are living in their, the same roof and then they've decided or one person has decided that they want out, they want outta the relationship. They wanna dissolve the marriage, and then they, need to, it's one of the most frequently. Ask questions is should I leave? Should I make the other person leave? And Amy what should we talk about in terms of why should someone move out or why should someone consider moving out?

Amy Goscha 1:21

It's really in that phase where you're moving from this point of being in a relationship together in one home and. Am I gonna go down this divorce or separation path? And so the tensions can be really high during that time. And so I think that it's really hard for couples to cohabitate when they're in the process of decoupling. So what are some of the, scenarios when, as the lawyer, as the family law attorney, Ryan, what are some of the things that you're thinking about? If you have a client who is. Thinking about moving out,

Ryan Kalamaya 1:56

the first question I'll ask is in terms of safety like what have the disputes is it just a dead marriage or are they having like heated arguments? But the number one thing is safety. If there's I used to be a prosecutor in Eagle County, and when you have domestic disputes, domestic violence, someone has been drinking or both. Both people have been drinking. Then that is when the risk is significant, where they get into an argument, Eric and Melanie Wolf, they're arguing over, fill in the blank, and they get into an argument and then Eric just loses his tool and hits Melanie. That can have such. Significant, long lasting implications. If those two people are not living under the same roof or roof, then that risk, that tension that pressure is alleviated. And so certainly that is a consideration. Another consideration are the children, if they are seeing Eric and Melanie, they may not. Eric and Melanie may not be physically fighting, but if they are just arguing if there is a toxic atmosphere, then you want to make sure that the kids are that they're protected. And so those are certainly elements that we'll discuss if there's a new relationship. There is nothing worse. Then having an affair in, under the same roof that can be understandably an emotional trigger. So certainly there are those considerations. The other thing too is that it's inevitable. I. You know that there is going to be a, inevitably I've had some nesting agreements and we've talked about nesting that have continued for a while after a divorce or through a divorce, but there is a reason that people are getting a divorce. But anything else that I haven't covered Amy, on why people should consider moving out? Yeah, I think we're coming back to some other considerations 'cause it's not, I don't think our blanket statement is everyone should, just move out. All of our clients, that's what our marching orders are. Just moving out. I think that people need to talk with a lawyer for sure. Before, making it's a big decision. So Amy, but anything else that I may have overlooked.

Amy Goscha 4:21

Yeah, I think that sometimes how people have operated and made it okay for their kids is there might be, I'll say, a higher functioning parent than the other. And so the higher functioning parent might make up for and be able to regulate things, if in the same house. So that's another consideration is, how is this gonna impact the children? Is this spouse able to emotionally regulate things for a little bit, for it to be okay for a while. But I think the biggest thing that you mentioned is, there's so much research out there about like when someone is about to move out where the DV statistics just skyrocket. You know exactly what you were saying.

Ryan Kalamaya 5:03

Yeah, but the I have seen, why should you not move out? The A there's a major financial consideration. In the mountains where I primarily practice the cost of housing is astronomical. Many of my clients have. Properties real estate. That one Eric is in one wing of the house and Melanie's in the other wing and they're ships passing in the night. And so that might be viable for them to continue doing that. They reduces tension potentially in seeing the kids because they're both under the same roof and if they continue their same pattern, there's not this. Posturing of, okay, Eric moves out and now we really need to be like, okay, Eric needs this number of overnights, or This is the schedule. You do need to pass or to go through things a little bit through the process under the same roof. And that pressure is, it's not as the kind of spotlight is not. On what exactly the schedule is so you can transition a little bit slower. And so those are certainly some considerations for not moving out. That said, I will, I. The things that are a little bit unique, especially in Aspen, we have an employee housing unit or employee housing. And so there, there can be circumstances where people are arguing over the house. And so someone will post up or be like. This is my castle and you need to get out of it. And then they feel like they're gonna kind of plant their flag and say that this is my house. And so there can be this jockeying. The other consideration, I think we alluded to is that if. Eric moves out, then he needs to make sure that he has a house or may, maybe not necessarily a house, but he has a property. If there are kids, that is, allows for them to have their own space. And so if he goes and, rents a studio just to save money, then it's gonna be very difficult for him to exercise parenting time on his time and his place. And that might be okay if they have a nesting agreement where they agree, both Eric and Melanie, I've seen it where Eric and Melanie, they'll go to the studio and they'll leave, they'll vacate the house. And so that nesting is one solution to this whole issue of where, should I leave? And for people that don't know Amy, what is nesting?

Amy Goscha 7:38

So nesting arrangement is where essentially. The kids don't really move. You have one house and the parents move either in and out of the house, or they are just in the house and they have essentially like different times that they're in charge of the children. Usually you see it where the parents are rotating, in and out of the house. And I would say one thing that's unique about our firm that we have a unique perspective on is. I think, like I worked in Eagle and now I'm down here in Denver, but in the mountains we have households where you might have a lock off and a lock off is like a, maybe a separate apartment. And nesting arrangement in that circumstance could be, someone is in the main residence, someone is in the lock off, and maybe the parents just rotate in between staying in the lock off. Just to give you an example of what nesting. Arrangements mean, but that can sometimes be an okay and creative solution, for that kind of housing setup.

Ryan Kalamaya 8:39

Yeah. And I guess a couple other considerations just some random thoughts on this topic is if Eric or Melanie's gonna come to me and they're gonna ask about whether I should stay or should I go, one question I'm gonna ask is, okay who's what's the mortgage on the, on this house? Because if it's only in Eric's name. And or if it's in both of their names and you can see the writing on the wall that one party is going to be able to afford it or not, or like Eric, and if the mortgage is only in his name, it might be that's gonna militate in favor of him staying because he's going to eventually get the house. And but I do think that is something that a lawyer needs to weigh in on because there are common myths and some of those myths are, if I leave, I'm gonna lose the house. That is, there is no legal presumption of, everyone talks about possession as nine tenths of the law in a domestic case. If Erica has moved out, it doesn't, there's no legal prejudice against him for saying, I should get, get the house. Yeah. There's also not any sort of, I think it's a more of, I went to college in Virginia. I think it's a southern kind of expectation. That husband's gonna move out and it's this kind of gente perspective. And I, I don't think that is as. Common, or it's certainly not legally some justifiable that the court's gonna say you're the man, you're the husband, you need to move out. That's just not something that you would ever I think, hear. And but I think really do think strategically, people need to be very. Mindful and I think that they ask the question for, a good reason. 'cause there can be some major implications. Both emotionally, both financial fine, emotionally, financially from a safety perspective. There is a lot that goes in. It's not just a blanket like Eric should always move out. There's going to be some circumstances in which it's going to really be something that a lawyer weighs in on.

Amy Goscha 10:42

Yeah, and I think that also that I get the question a, I'm sure you do that says if I don't stay in the house, that means that, like you said, I'm losing legal rights. You're not doing that. And the other thing that people have to understand is sometimes you can't force someone necessarily out of the house. So there are le legal steps that we may need to take. Hopefully we don't have to file motions for what are called temporary orders to ask the court, to determine temporary use and possession, but there are sometimes those avenues that we have to take. And I'm sure that you've had this in your cases as well, Ryan, interest rates. That's a huge issue right now with. Who ultimately keeps the house, or if you're moving out if both parties are on the mortgage and having to refinance it the interest rate is, a lot higher than probably where it was. It stood before.

Ryan Kalamaya 11:31

It is, and I'm glad you mentioned the temporary orders. People will, we will, we can file a motion for exclusive possession of the house and ask the court for that order. But it's gonna take a while. And when we talk about the cost. In the time we talked about that in another episode about managing client expectations, people are blown away at how long it's gonna take and how much it's gonna cost. I went to this bench bar meeting with the judges up in the mountains and because one workaround that some attorneys or parties will see is I'm just gonna file a civil protection order 'cause I'm gonna yank this person out and I'm just gonna, just going to assert my control and. That has major implications. The judges are aware of that power move, and it can really come back to haunt someone that overplays their hand and files a civil protection order just to get possession of the house. So I think the kind of headline on this episode is when. You are dealing with moving out and it's contentious. You really need to seek legal opinion on that issue because it, it is, it, it's like any lawyer answer. It depends. And the application of the facts with the law I think is critical by someone that is pretty experienced. Instead of creating these bright line rules of. The, in every circumstance, Melanie's gonna keep the house. That is just not true. It really depends on the circumstances of that particular matter.

Amy Goscha 13:06

Yeah. One thing I'll mention is the temper or the automatic temporary injunction that is in place where, bills need to be paid, status quo, but you have to figure out if it's hard to cohabitate, which usually it is. There's just gonna be more expense. So sometimes the planning of who is going to like, keep the house eventually, might make more sense for them to stay in there temporarily and the other spouse to move out. I think it also, can depend on their strategy on staying in the house, depending on like the need, like if. If you're the spouse that is not working, like maybe you do want to stay in the house because you need to show that you have a higher need. So there's a lot of nuanced and intricacy that goes into that determination.

Ryan Kalamaya 13:56

Indeed. Thank you for joining us on Divorce Altittude. Super common question. And if you have any follow up questions or comments, please reach out. But until then, thank you for joining Amy, me on Divorce Altittude.

Ryan Kalamaya 14:09

Ryan Kalamaya: 24:14 Thanks for listening or watching this short lesson on the Divorce Ude podcast. If you found this helpful, please leave a review or share with a friend. It does help for others that are going through or thinking about a Divorce in Colorado. If you want to find out more information, Please visit Kalamaya Law or Divorce at Altittude dot com and that's K A L A M A Y A law. Remember, this is educational information, it's not intended to be legal advice. Please consult with an attorney about the particulars of your case. We're happy to answer questions. Feel free to give us a call at (970) 315-2365.