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.
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.
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.
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.
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.
Tips & Warnings
- If your spouse refuses to leave or the court won’t award you exclusive occupancy, try to come up with some household rules to help you co-exist. Divide the house into sections solely for his use and solely for yours. This might involve moving some televisions and furniture, but if you have no other choice, it could be worth the effort. Assign times when each of you can use common areas, such as the kitchen. Try to stay out of each other's way as much as possible.
References & Resources
- Divorce360; They Won’t Leave? Now What?; Lenore Skomal
- Hallier & Lawrence; Property; Angela Hallier
- Gregory S. Forman: Five Ways to Get a Spouse Out of the House: March 2002
- Fox Rothschild; Living Together During a Divorce – The Right Decision or the Only Choice; Robert A. Epstein; April 2011
- Schiller, DuCanto & Fleck; Living Together While Going Through a Divorce; Kimberly A. Cook; November 2010
- Jupiterimages/Creatas/Getty Images