Can a Wife Move Back Into the House if the Divorce Is Not Final?

By Rob Jennings J.D.

Usually the largest asset that a couple acquires during their marriage is their home. While both spouses usually have an interest in the equity of that home, who has a right to stay in the home until the divorce is final largely depends on whether one spouse has left the residence voluntarily. It is important to consider these issues before anyone leaves the residence.

Right to Marital Home

Until a divorce decree or court order states otherwise, both spouses have a right to reside in the marital home. Therefore, neither spouse can force the other party out, unless special circumstances exist. For example, when one spouse commits an act of domestic violence against the other and a judge compels the offender to leave the marital home. The wife does not forfeit her marital equity in the residence, however, just because she leaves.

Voluntary Departure

If the wife voluntarily leaves the marital home and establishes living quarters elsewhere, then she has an expectation of privacy at her new home and the spouse who remains in the marital home is usually entitled to the same privacy. Depending upon the jurisdiction, a spouse who voluntarily left and established a new residence elsewhere may not be allowed back into the marital home without the consent of the spouse who didn't leave. In some jurisdictions, such a party could be charged with trespassing for coming back to the house if she was told to stay away.

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Returning Home

Sometimes a spouse wants to return to the marital residence after she has left. She may realize she cannot afford to maintain her own separate residence or disadvantaged herself with child custody if the children still live in the home with the other parent. Frequently, the only way to return to the marital home after you left it voluntarily is to get a court order that forces your ex to allow you back or changes possession of the residence. A court is not likely to force the other spouse to do this without some compelling reason.

Special Circumstances

While a judge usually will not force the husband to let the wife back into the marital home after she has voluntarily left, special circumstances may exist to change that. If the wife has custody of the children, for example, re-entry and dispossession of the remaining spouse might be possible. The wife might also recover possession of the house if she can pay for it and the husband cannot -- or will not. Furthermore, the wife may be able to show that while she decided to leave, she only did so because of misconduct by her husband.

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