To Move Out or Not To Move Out – That is the Question

When it comes to divorce, we have all heard that timeless adage that is passed between friends, co-workers, neighbors, and the rowdy crowd of stampers that amass for Saturday-night Bingo – “Never voluntarily move out of the marital residence.”  A majority of the time, people are not exactly sure why they need to stay in the family residence, they just know that somewhere along the way, this sage proverb was firmly engrained into their psyche and should never be challenged.

And nobody heard and responded to the compelling call to cling to the marital residence more so than Sharafat Khan, a 69-year-old Houston resident whose estranged wife kicked him out of the million-dollar house they shared in March of last year.  Rather than checking into a hotel or renting an apartment, Mr. Khan’s reaction was nothing short of bizarre:  after he was kicked to the curb and his wife changed the locks, Mr. Khan has lived in his front yard, under the shade of one of his palm trees.  This takes the “never move out” mantra to an entirely new level.  For over seven months, Mr. Khan camped in his own front lawn in quiet protest for what he feels are the myriad of injustices that have been perpetrated upon him by his spouse.  Despite numerous trips to the hospital and repeated requests made to police by Mr. Khan’s wife to remove him from the property, the police have indicated that because Mr. Khan’s name is also on the deed to the house, they do not have the authority to remove him from his own front lawn.  As such, it seems that the aging Mr. Khan will seemingly cling to the last little piece of home he has access to until the bitter end.

Certainly this is not what the masses had in mind when they warned potential parties to a divorce to be wary of the cardinal sin of moving from the marital residence.  Rest assured, the Texas legislature has provided family law participants with a number of remedies and procedures that address the issue of what to do if your spouse kicks you out or your spouse will not leave.

It is common for Courts to clearly delineate the rights of each party concerning the most commonly used pieces of marital property—the residence and the vehicles.  If you want to stay in the house during the pendency of a divorce case, but your spouse refuses to vacate the premises, you are permitted to request that the Court provide you with the exclusive right to the use and possession of the marital residence.  Conversely, if you arrive home and find that your spouse has changed the locks and left you without so much as a toothbrush or pajamas, you can make this same request to the Court during a Temporary Orders hearing, which generally occur fairly soon after a divorce suit is filed in contentious cases like ones in which this type of problem are more readily observed.

And of course, in situations involving domestic violence and abuse, the victim should always place a priority on ensuring their safety by seeking a protective order or temporary restraining order and asking the Court to give them the exclusive right to live in the residence while also prohibiting the other spouse from coming with 500 feet of the residence.

However, while the “never move out” tag line has become somewhat of a catch phrase for people going through divorce, there are a number of points that validate the reasoning behind this statement.  But the most commonly understood reason for why a party to a divorce should not move out of the marital residence is applicable in cases where parties have children, typically younger children, who have spent their whole lives growing up in that house.  In these circumstances, the Court may potentially be more inclined to designate the familiar residence as the children’s primary residence (or specifically, more inclined to give the person living in that house the exclusive right to designate the residence and domicile of the children).

So, if you are a father pushing for increased possession time with your child, or if you are a mother who has been the primary caretaker to your children since they were born, and you have questions about how to best prepare for your divorce case, contact our law firm, McClure Law Group, and schedule an appointment for a consultation with one of our attorneys by calling (214) 692-8200 so that we can help make sure that your first steps through divorce are the right ones.


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