By Michael H. Gora
Q I am planning to begin divorce proceedings against my wife in the near future. While we both make a good living and have somewhat more money because of the stock market rally the last few years, we are by no means wealthy.
I want to remain in our home, with my wife and two children during the divorce, so that the expense of having to fund two households can be delayed as long as possible, as can the ultimate impact of the divorce on my teenaged boys.
There has been no physical violence whatsoever during the marriage, but there has lately been significant acrimony, leading to occasional loud arguments. My wife believes that I have been cheating on her with another woman, which is not true, and her belief and paranoia have become the very reason that I have decided to go forward.
When I file my case, do I have to leave the house? Can she throw me out of the House? If I leave voluntarily, is that “abandonment”? If I leave voluntarily, will it hurt my chances of getting 50% custody of my sons?
A Winning cases in divorce court require you and your lawyer to know the law, prove the facts and impress the judge with your truthfulness and fairness. There is no obligation under Florida law for you to leave the marital home because you file dissolution of marriage proceeding against your wife.
Your wife can have you removed from the home only by filing a Petition for a Domestic Violence Injunction and claiming and proving that by virtue of your conduct, she has a reasonable fear of imminent harm to herself or the children from you under the Domestic Violence, or Repeat Violence statutes.
Usually injunctions are not granted without some physical contact by you against your wife, but serious threats can form a basis to remove you. Some domestic violence allegations are based upon fact, some fiction.
Although less likely, she can have you removed from the home under the dissolution of marriage statute, Chapter 61 of the Florida Statutes. Under that statute she would have to prove that you have caused the atmosphere in the marital home has become harmful to your children because of the arguing, accusations, and your involvement of your children in the details of your divorce.
If you voluntarily leave your home, it may well adversely affect your case for rotating custody, a term used to describe the sharing of overnights with your sons on a 50%/50% basis.
A judge might feel that your interest in the equal parenting is not genuine, but based on a wish to lower your support obligations, or just a bargaining tool in on other economic issues in your case.
Michael H. Gora has been certified by the Board of Specialization of The Florida Bar as a specialist in family and matrimonial law, and is a partner with Shapiro Blasi Wasserman & Gora P.A. in Boca Raton. Questions may be submitted to Mr. Gora at mhgora@sbwlawfirm.com.