How to Make a Spouse Move Out During Divorce

By Beverly Bird

First, the bad news. If you purchased your home jointly with your spouse, he owns it, too. There’s little you can do to force him to leave against his will. In fact, many attorneys will advise him not to go. It might appear to the court that he has left his children with a parent who he is later going to claim should not have custody. The good news is that sometimes, the court might instruct him to move out anyway.

First, the bad news. If you purchased your home jointly with your spouse, he owns it, too. There’s little you can do to force him to leave against his will. In fact, many attorneys will advise him not to go. It might appear to the court that he has left his children with a parent who he is later going to claim should not have custody. The good news is that sometimes, the court might instruct him to move out anyway.

Step 1

Talk it out. Your spouse might not want to be in the house with you any more than you want to live there with him, but he may have some viable concerns about moving out. Try to come up with a plan to address those concerns. Agree to an immediate custody and visitation agreement, filed with the court, so he knows he’ll still have regular time with his children. Agree to a partial settlement, one that just concerns the house. He might leave if he knows it’s not going to jeopardize his financial interest in the home.

Divorce is never easy, but we can help. Learn More

Step 2

File a motion with the court for exclusive occupancy of your home pending your final decree. If you win, the judge will order your spouse to leave. However, you will probably have to prove that his presence in the home is causing extreme angst for you and your children because of some circumstance like verbal or alcohol abuse. Some state courts are more willing to entertain this concept than others.

Step 3

Ask the court for a domestic violence restraining order if you genuinely feel you’re in danger. The procedures in most states involve a temporary order, then a hearing to determine if your allegations are legitimate. If they are, the court will order your spouse to move out and give you occupancy of the home, unless or until you give it up in your final divorce decree.

Step 4

Many courts will not award a final restraining order unless there’s been actual physical violence. If you get a temporary restraining order because your spouse threatened violence, it may not be enough to keep him out of the home permanently, pending your divorce. Courts are also becoming more wary of spouses making false claims of violence because it may be the only way they can get their partners to leave the home. If the court denies you a final restraining order after your temporary order, your spouse can return home in a few weeks and the situation could be worse than before because he's angry over what you've done. If you’re suffering domestic violence, speak with an attorney as soon as possible to explore your options.

Divorce is never easy, but we can help. Learn More
Residence Rights During Divorce

References

Related articles

What If a Child Custody Decision Has Been Made But Changes Occur?

It's not a foregone conclusion that parents move into separate households the minute they decide to divorce; many remain in the marital home together. If you decide to part ways, custody and visitation can become an issue long before your divorce is final. You generally cannot take your children and leave without a court order giving you permission to do so, but you can reach an arrangement by consent or the court can issue one after a hearing. Either way, if your situation changes after the order is in place, you have a few options for modifying it.

What Are the Legal Rights of Women in Divorce?

Marriage is a binding legal contract. Two people obligate themselves as partners, presumably for life. But marriage doesn’t always last forever -- and when one spouse ends it, he still has certain contractual obligations to the other. The law doesn’t permit men or women to simply walk away from the union without potential responsibility for the other’s welfare.

Standards for Moving Children During a Divorce in Georgia

The Georgia Supreme Court issued a landmark decision in 2003 regarding parental relocation, effectively turning previous case law in the state on its ear. If you're going through a divorce and you want to leave the state, that's fine – but the court may not let you take your children with you. Permanent custody isn't awarded until your final divorce decree is issued, and the decree could give custody to your children's other parent if you hope to move them out of state.

Get Divorced Online

Related articles

How to Divorce Someone With a Narcissistic Personality Disorder

Even mentally healthy individuals might feel some sense of rejection when they learn their spouses want a divorce. ...

How to Obtain a Legal Separation if a Spouse Refuses to Leave in North Carolina

Unfortunately for some spouses in North Carolina, separation is often the only way they can obtain a divorce. The state ...

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 ...

Rights on Temporary Possession of a Marital Home

When a couple marries and purchases a home together, then one files for divorce, this does not automatically grant ...

Browse by category
Ready to Begin? GET STARTED