You've decided that your marriage is over. There's just one problem: Your spouse is still living in the house.
Maybe the two of you barely speak. Maybe every conversation becomes an argument. Maybe you've already told your spouse that you want a divorce and now you're wondering why you should have to continue living together.
So can you simply tell your spouse to leave? Usually, it's not that simple.
Wanting a Divorce Doesn't Automatically Give You Possession of the House
If your spouse has a legal right to occupy the marital home, the fact that you want a divorce doesn't automatically give you the right to throw your spouse out. That can be incredibly frustrating.
You may be the person who wants the marriage to end. You may be the person who pays most of the bills. The house may even be titled in your name. But don't assume that any of those facts, standing alone, mean that you can simply change the locks and tell your spouse to find somewhere else to live.
Who owns the house, who ultimately receives it in the divorce, and who is permitted to live there while the divorce is pending can be separate questions.
A Restraining Order Can Change Who Remains in the Home
Domestic violence presents a very different situation. If the circumstances justify a restraining order under New Jersey law, the court can grant the protected spouse exclusive possession of the residence. That can happen regardless of whether the home is jointly owned, owned solely by one spouse, or leased.
In other words, ownership of the house doesn't necessarily determine who is allowed to remain there when a domestic violence restraining order is involved. But a restraining order is a serious legal remedy designed to protect victims of domestic violence. It should not be viewed as a strategy for removing a spouse simply because living together has become unpleasant or because one spouse wants an advantage in the divorce.
There May Be Other Ways to Address Temporary Possession
A restraining order isn't the only context in which living arrangements can be addressed. During a divorce, spouses may reach an agreement about who will remain in the marital home while the case is pending.
In some circumstances, a party may also ask the Family Court for temporary relief concerning possession of the residence. Whether that relief is appropriate depends upon the particular facts of the case. That's why I would be very careful about taking matters into your own hands.
Don't assume you can change the locks, remove your spouse's belongings or otherwise force your spouse out simply because you believe you should be the person who stays. Talk to your lawyer about the circumstances and determine the appropriate way to address the problem.
What If Your Spouse Agrees to Leave?
Of course, not every separation requires a judge to decide who stays in the house. Sometimes one spouse voluntarily moves out.
If you and your spouse can agree upon a temporary arrangement, that's often much simpler than fighting about possession of the home. But think beyond the move itself.
If one spouse leaves, you'll also need to consider how the mortgage, property taxes, utilities and other household expenses will be paid. If you have children, you'll need to think about where they will live and how parenting time will work. A decision that sounds as simple as "I'll move out" can affect several other parts of your separation.
Moving Out Doesn't Necessarily Mean Giving Up the House
People are sometimes afraid that if they voluntarily leave the marital home, they've surrendered their financial interest in it. That's not automatically true. Where you live while your divorce is pending and how the equity in the home is ultimately addressed are different issues.
The house may eventually be sold. One spouse may ultimately keep it. Its equity may need to be considered as part of equitable distribution. Moving out does not, by itself, answer those questions.
But the practical consequences of leaving can still matter, particularly if you have children or if maintaining two households will create financial strain. That's why moving out should be a considered decision rather than something you do in the middle of an argument.
Don't Turn a Housing Problem Into a Legal Problem
Living with someone you're divorcing can be miserable. I understand why someone might reach the point where they simply want the other person gone. But unless you're dealing with an immediate safety issue, don't make an impulsive decision such as changing the locks or putting your spouse's belongings outside. Find out what your rights actually are first.
If there is domestic violence, different protections may be available and your immediate safety should come first. If there isn't, talk with your divorce lawyer about whether you can reach an agreement with your spouse or whether temporary court intervention is appropriate.
The important point is that wanting your spouse to leave and having the legal right to force your spouse to leave are not necessarily the same thing.
If you're considering separation and trying to understand what you should and shouldn't do before filing for divorce, my free Divorce Smarter Course will help you understand the issues before making important decisions.
Until next time,
Steve