Countless clients ask me if they can force their spouse to move out of the family residence. Forcing a person to move out of their residence is one of the most extreme remedies in family law. Imagine having the children witnessing their mother or father moving on quick order, sometimes under the supervision of a sheriff. While there is no question that it is not pleasant when divorcing spouses continue to live in the same house during the divorce proceeding, the lack of comfort is not a reason to exclude someone from their home. As a result, a spouse cannot be forced to move out of the family residence unless the court issues a restraining order against that spouse providing for their exclusion from the residence.
To seek a restraining order to exclude a spouse from his or her home, domestic violence as defined by the law must be proven through a contested trial. Upon establishing the existence of domestic violence, then residence exclusion can be ordered. If domestic violence cannot be demonstrated, the court cannot make such an order and the spouse remains in the home. Therefore, when the situation arises where spouses remain in the family residence during the divorce proceeding, here are a few tips to hopefully help ease the unpleasantness:
Act Civil Toward Each Other. This may sound obvious, but it is frequently forgotten. Should a disagreement arise (and it likely will), it is critical to not allow it to escalate. Leave the room, take a walk, and go to the movies – whatever it takes to stop the disagreement. When disagreements get heated, it can lead to behavior that supports domestic violence claims and exclusion from the residence, so take a deep breath and walk away from the situation.
Segregate the House. Take the time and patience to reach an agreement as to where each person will sleep, who will use which bathroom (or if only one bathroom, designate times of use, especially in the morning), designate times to cook in the kitchen, use the television, etc. Establishing ground rules will help to keep the peace.
Household Expenses. While living together during a divorce, work to maintain the financial status quo as much as possible. In other words, if the spouses used to equally contribute toward the household expenses, this should continue; if one spouse supported the other during the marriage, this likewise should continue. Neither spouse should increase spending – again, maintaining the status quo is likely the best course of action.
Timesharing of the Children. Establishing a true custody schedule while living in the same home can prove to be challenging because the day-to-day responsibilities – especially when caring for an infant/toddler – are so great that a judge is likely not going to be able to establish an order detailed enough to state which parent is responsible for each given task. It is not impossible to do so; it is just challenging to do so in the courthouse. Therefore, since parents are expected to co-parent their children and, ultimately, each parent will be responsible for the children in their own home when they physically separate, it is wise to start some form of timesharing immediately. Parents can consider reaching agreements about who will take the children to school, pick them up from school, take them to and from their activities bathe young children on a given night. Reaching some agreements on the issues which involve the children will keep the children from feeling like they are the rope in the tug-of-war for time between the parents.
Unless a restraining order has been issued by the court to exclude a spouse from their home, a spouse cannot be forced to move out. There are probably just as many reasons why a spouse may choose to remain in a house, as there are for leaving the house, and therefore the decision to stay or leave must be carefully considered. Before any decision is made, it is advisable to discuss the choices in light of the above thoughts, and others that your lawyer will have, before making the final decision.