Divorce proceedings sometimes last for several months, even years. Continuing to share a home with your soon-to-be ex may be very stressful and you’d like him out. But when each spouse has a legal interest in the marital home, judges are generally reluctant to kick one party out of the home before the divorce is finalized. If your spouse does not agree to leave, you are faced with the difficult task of demonstrating to the judge that your safety is at risk or that your legal interest in the property should prevail.
Right to Stay in the Home
In most states, spouses jointly own all property acquired during the marriage. This means that if the home was acquired during the marriage -- even if only one spouse’s name appears on the mortgage or deed -- both parties have an ownership interest in the property and both are entitled to remain in possession. If the home belonged to one spouse prior to the marriage, the other spouse may have acquired a right to remain in the property during the divorce because she contributed to mortgage payments or made improvements to the home. If the marital home is rented and both parties signed the lease, each is entitled to occupy the property until the lease ends. In many jurisdictions, even if only one spouse's name appears on the lease, the other will be entitled to stay.
Come to an Agreement
Because it is difficult to force one spouse to leave the family residence, you may want to try to reach a mutual agreement as to who will stay in the marital home while the divorce is pending. Once you reach an agreement, present it to the court for approval. If the judge approves it, she will issue a Temporary Stipulation or Temporary Order, which is enforceable until the court issues your final divorce decree.
Seek a Restraining Order
If you are the victim of domestic abuse, many jurisdictions will exclude your spouse from the marital home by issuing a protective or restraining order. This order will exclude the offender from the marital home for a specified time and grant the abused spouse exclusive right to possession of the home. In some jurisdictions, you can seek a protective order from the same judge handling your divorce, but in others you may have to file documents in a different court.
Request a Court Order
If you cannot reach a mutual agreement with your spouse and you are not the victim of domestic abuse, you may ask the court for an order excluding your spouse from the marital home by filing a Petition for Temporary Right to Exclusive Possession or Temporary Motion to Exclude. In your request, explain why you want your spouse to leave and ask that the matter be set for hearing. You must give your spouse notice of the request and the hearing date. At the hearing, you’ll offer evidence explaining to the court why you are entitled to sole possession of the property. Factors that the court will consider include whether there are children and if they are being adversely affected by the atmosphere in your home, how volatile the marital relationship has become, and the financial resources of the parties. If the court finds in your favor, it will issue a temporary order that is enforceable until your final divorce decree is entered.
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