By Hope Tuber
Once your action starts, a question that sometimes arises is whether you have to continue to live together pending the divorce. There is no simple answer. First, if there are no children, it might be easier. Sit down with your spouse and see if it makes financial sense to live apart. Remember, whoever leaves the marital home will need to pay rent and all other expenses that come with living on your own. One of you may have family close by, and perhaps that might be a temporary option. Ultimately, if there isn’t a voluntary move, it is not that simple to have one person move out.
Before addressing the procedure for removing a person from the marital residence, also known as getting “exclusive use and occupancy,” lets address the same issue with children involved. Now the situation becomes more complicated. First, you would be asking for a parent to leave their children during this time and keeping both of you in the house may be in the best interests of the children. Second, if one person does leave, an argument will be made that the spouse who left conceded residential custody to the remaining parent in the home with the children. Therefore, if custody is an issue, leaving the marital residence has far reaching consequences.
So, how do you remove a spouse from the martial residence? First, voluntarily. If they set up a separate residence, then it is easier to say to a court that they should not come back. Hopefully with a new residence established, you will not need to involve the courts. If an agreement cannot be reached you will need to go to court and argue that it is dangerous for your spouse to be in the same house with you. Not just physical danger but in some cases psychological abuse may qualify for a reason to involuntarily remove your spouse. This is especially true if the “strife” in the home involves the children. Courts are more inclined to grant exclusive use and occupancy to one spouse if the turmoil in the home affects the children. In addition to this stated and hopefully substantiated argument, it will help if your spouse has a realistic place to relocate as the courts will consider this factor in its decision.
Ultimately, this is a big decision with far reaching consequences. Ensure that whatever you decide it pushes you to what is believed to be in your family’s best interest.