Who Has to Leave When Divorce Is Filed?

By Beverly Bird

Unless and until a court issues an order requiring you or your spouse to leave, both of you have equal rights to the marital home. The court generally can't make such an order unless one of you files for divorce first, but the act of filing for divorce doesn't force either of you out, at least not by itself.

Unless and until a court issues an order requiring you or your spouse to leave, both of you have equal rights to the marital home. The court generally can't make such an order unless one of you files for divorce first, but the act of filing for divorce doesn't force either of you out, at least not by itself.

Exclusive Occupancy

After you file for divorce, you can file a motion asking a judge to award you exclusive possession of your home. This may not be as easy as it sounds, however. The court will want a very good reason for letting you stay and making your spouse go. His presence in the house must usually create such intolerable, stressful conditions that no one would expect the two of you to continue to reside there together. You'll need proof – you can't just make the allegation and expect the judge to take your word for it. If you're in actual physical danger, you can file for a restraining order and this would also remove your spouse from the home.

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Negotiating an Agreement

Your spouse might not want to leave because you don't yet have a parenting plan in place, or because it's unclear who will pay for what. After you file for divorce, you can file a motion with the court, asking a judge to resolve these issues temporarily until your proceedings are final. If they're resolved, your spouse might be more willing to move out. If you can reach a settlement agreement on your own, resolving all issues of your marriage, not only might he move out, but your divorce will be uncontested as a result.

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How to Make a Spouse Move Out During Divorce

References

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Difference Between Contested & Uncontested Divorce

Divorce can be a morass of legal terms that leaves couples confused and nervous, but some meanings are just what they sound like. If your divorce is uncontested, you and your spouse are not arguing any issues. A contested divorce is the stuff movies are made of – courtrooms, testimony and evidence.

Residence Rights During Divorce

When a couple decides to end their marriage, it doesn't automatically follow that one spouse will pack his bags and move out. He's probably contributed to the home's mortgage or rent payments over the years just as the other spouse has; therefore, both have an equal right to live in the home. Unless they come to an agreement, both spouses can stay in the home until the court orders someone to move out -- and courts are not usually quick to do this.

Leaving a Matrimonial Home Before a Divorce

A divorce is often a highly emotional event; continuing to live in the same residence can cause the stress to skyrocket. While it is understandable that you might want to move out of the marital home while the divorce is pending, leaving can have serious consequences. Before you pack up and go, consider how moving out can affect the way your divorce unfolds.

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