How to Make a Spouse Move Out During Divorce

By Cindy DeRuyter, J.D.

How to Make a Spouse Move Out During Divorce

By Cindy DeRuyter, J.D.

If you and your spouse are in the process of divorcing, it is understandable to want them to move out of your home. Deciding to end a marriage is often emotionally challenging, and living under the same roof as the person you're divorcing can make an already stressful process even more so. Unfortunately, it is not easy to compel an unwilling spouse to cooperate, especially if the two of you own your home jointly or if both of your names are on the lease. However, under certain circumstances, a judge may issue an order requiring your spouse to vacate the property while your divorce is pending.

Sad woman and a man in the background holding moving boxes

1. Try to come to an agreement with your spouse.

Before pursuing action through your attorney and involving the court in your living situation, try talking to your spouse. You may find that he or she is not happy with the living situation either and is willing to leave if you can agree on terms that satisfy both of you. If you have children, be prepared for the possibility that your spouse's attorney will advise your spouse not to leave the family home because it could look like he or she is abandoning the children.

2. Determine whether there are extenuating circumstances.

The judge overseeing your divorce case may order your spouse to leave the home you share, but courts reviewing such requests are usually reluctant to issue such orders without proof that there is sufficient cause. If you fear spousal abuse or if you have a reason to believe that your spouse's demeanor, behavior, or substance abuse problem may put your child in danger of assault or abuse, you can ask the court to grant a restraining order or an order giving you exclusive occupancy of your home.

3. Request an order for exclusive occupancy.

Your divorce attorney can help you file a motion asking the court to give you the exclusive right to live in your home until the divorce is final. If there is a compelling reason to request an emergency order—for example, you fear imminent physical danger from your spouse if he or she remains in your home—you can request an emergency order. In most cases, courts hear and handle requests for exclusive occupancy on a nonemergency basis. The court schedules hearings where each spouse presents his or her case, including relevant evidence and facts supporting his or her position.

There are variations to this process, so it is important to understand your state's terminology and procedures. For example, some states issue temporary orders, but other states' laws provide for "divorce from bed and board," which has the effect, among other things, of separating the spouses legally while their actual divorce action is pending. No matter what state you are in or what your state calls this type of order, you need a valid reason for asking the court to remove your spouse from your home and you need evidence to back up your assertion.

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