When a couple is going through a divorce, or is on the verge of a divorce, there usually comes a time when living together in the same space becomes stressful to the point of being impossible. It is also common for neither spouse to want to leave the marital home, especially if there are minor children in the home.
So when the time comes that you can no longer stand to be in the same residence as your spouse, can you throw your spouse’s belongings out on the front lawn and change the locks on the door?
Generally speaking, the answer is no. Spouses who own a home usually have equal rights to possess and occupy the home. So, if you change the locks on the doors, your spouse can change them to whatever key s/he wants to change them to and you could change them back again. Legally speaking, neither spouse has more control over the home than the other…even if only one spouse has been making the mortgage payments.
The exception to this rule is in the case of domestic abuse. If either spouse is abusive (physically or emotionally) the police may intervene and remove the abusive spouse from the home. The court will typically hold a hearing and if a spouse needs protection, the abusive spouse may be forbidden from entering the home or being on the homestead property.
Will Leaving the Home Impact Custody?
There is an inherent fear that once a person leaves the home, that person will also lose custody or parenting time with the children. While there is some truth to the fact that a person who leaves the marital home will no longer be there every morning and night to see the children, a temporary parenting plan can be requested to allow for equal parenting time while the details of the divorce are sorted out.
When a parent leaves the marital home, or even before s/he leaves, the parent can ask the court to order a temporary parenting time schedule. The parenting schedule would detail days and times when the children are with each parent. Some attorneys may try to argue that a parent who leaves the home abandons the children, but the other side of the argument is that a parent may be protecting the children from a stressful situation by “taking the high road” and leaving the marital home for the benefit of the entire family. Leaving the family home should not impact parenting time or custody.
How Do I Pay for a New Home?
In today’s economy with so many families facing financial troubles, this may be the biggest hurdle for couples facing divorce. Many people simply cannot afford two households and may be forced to stay under one roof for financial reasons. Couples sometimes divide the house into sections so each spouse essentially has his/her own space. This is not an ideal situation but sometimes it is the only way to manage under one roof until the house can be sold and the proceeds are divided equally or until the retirement assets can be liquidated and used to purchase or rent another residence.
If the couple can afford two residences, or rent, then a spouse may petition the court for temporary financial relief. In that case a spouse would ask the court to give him/her a share of the marital income or property to pay for a place to live, as well as monthly living expenses, until the divorce details are finalized. If one spouse has more income than the other, the court may award temporary spousal support to allow both spouses to maintain the marital standard of living during litigation or settlement conferences.
Getting Legal Help
If you are in a situation where you feel you need to get out of your house or you need your spouse to leave, an experienced family law attorney can help you understand your rights. You do not have to continue to suffer or live in an unsafe environment. We can protect you, your children, and your assets and get you through the divorce process with respect.
Updated 5/3/2021
