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Removing a Spouse from the Marital Home During Divorce

On Behalf of | Apr 17, 2016 | Divorce

Sometimes, during a divorce there may be cause for removing the other spouse from the marital home, due to a history of abuse or other compelling reasons. Whether you are the spouse being ousted, or the one who wants to get some distance between you and your ex, here is what this entails and the repercussions of making this move during divorce.

When spouses can be ousted Simply not being able to stand to live with each other isn’t reason enough to bar one partner from the marital home while the divorce is finalized. Even if it means sharing a home for several months. However, there are some exceptional circumstances, under which a court may grant an order that debars one spouse from the home. This may be for reasons such as the possibility of the spouse causing severe emotional or bodily harm, or if living together could  be detrimental to the kids, and other such compelling circumstances.

How the process works The family home is often central to the divorce settlement, and division of the assets may sometimes require the house to be sold and the amount divided equitably between both partners. As such, the judge will review this matter seriously and grant the order removing one spouse from the home, only if they find enough justified cause to do so.

Filing a motion: If you feel you need to bar your spouse from your marital home, you will first need to file a motion to the family court, so that they may apply equitable jurisdiction to have him or her removed. Getting this order passed is not always easy and you will need to build a strong case and present evidence justifying this need.

Plenary hearing: For cases where a court believes there is good reason for this request, a full plenary hearing is granted. During this hearing, testimony as well as documentary evidence is presented. For many, the motion may be dismissed at this stage if reasons are not compelling enough or are not adequately proven.

Domestic abuse cases Cases involving domestic abuse are the ones most commonly granted such a court order. This is usually supplemented by a restraining order which prevents your spouse from coming within a certain distance of you and your children. And this will include the home you live in.

Why you shouldn’t move out of the family home Unless there is a court order to that effect, divorce attorneys and experts will advise you not to leave the family home. That’s because by moving out you weaken your case for being awarded the property in the divorce or moving back in once the divorce is finalized. During the divorce mediation process or as the divorce proceedings move forward, the fact that you do not actually live in the home anymore may be used to reduce your rights to staking a claim on it.