Living in the same home with your spouse while going through a divorce can be unpleasant and frustrating. However, if your spouse does not voluntarily agree to leave and establish a separate residence, you cannot force him/her from the marital home merely because the situation is uncomfortable. Regardless of whose name may be on the deed or lease agreement, you are both entitled to possession of the marital residence unless there is a court order directing one of you to leave.
A spouse may obtain a court order, typically referred to as an Order of Protection, in one of two ways. If you are the victim of a crime perpetrated by your spouse, such as assault, stalking or harassment, you may contact the police at which point your spouse may be arrested. Upon arraignment before a judge on the charges, the court will typically issue an Order of Protection directing your spouse to stay away from you, your home, and your place of business. This will require your spouse to move from the marital residence until the charges are resolved, and likely permanently thereafter if your spouse is convicted. An alternative method is to file a Family Offense Petition in your local Family Court. This petition must allege conduct by your spouse which constitutes one of the delineated crimes as set forth in the Family Court Act, such as assault or harassment. Arguing, bickering and name-calling is typically not enough. If the Family Court judge determines the allegations to be sufficient, the court will issue an Order of Protection directing your spouse to stay away from you, your home, and your place of business. However, Family Court is a civil court, not a criminal court. Thus, your spouse is not subject to arrest and they face no criminal penalties.
Both methods of obtaining an Order of Protection may be pursued at the same time, in separate courts, both civil and criminal, based upon the same allegations of unlawful conduct.
A third method exists when your divorce is pending. Your attorney may make a motion before the divorce court seeking an order, on your behalf, for exclusive use and possession of the marital residence. This is not an Order of Protection. If the motion is successful, the court will issue an order directing your spouse to leave the home while the divorce is pending. Once again, this will require allegations, and proof, of serious misconduct by your spouse toward you, your children and/or your property. If your spouse has already voluntarily left the home, established a separate residence, and is now threatening to return, your attorney may prevail on the motion for exclusive use and possession by merely alleging your spouse’s return will cause “marital strife,” a far more relaxed standard for issuance of the order.
There are many reasons why spouses choose to continue residing together during their divorce, even if the situation is uncomfortable or near unbearable. These include issues of child custody and the availability of finances needed to relocate. Call Frost & Kavanaugh, P.C. for a consultation to learn more.