By the time you or your spouse has spoken the words “I want a divorce,” you may have crossed a point of no return. Knowing the marriage is over and living in the same home can be uncomfortable, and for some, too painful to handle. You may also need your spouse to leave because of serious problems such as violence or intimidation. If you are thinking about having your spouse move out during your divorce, here are some issues to consider:
If you want the other person to move out of your home, the reason matters. If you cannot agree, your only option will be to go the court and ask for a temporary order, which allows you exclusive use of the marital home.
Being frustrated with the situation is not typically a valid basis for asking the court to make the other person leave. However, if there has been violence, a restraining order can be sought to keep the violent person away from you, your home, and if applicable, your children. Additionally, the court will be concerned about the well-being of your children. If they are experiencing severe emotional distress because of the dynamic within the home, such as excessive drinking or suicidal behavior, the court may be inclined to order a parent to move out or at least refrain from certain behaviors in the presence of the kids.
One important thing to consider is how you intend to pay for the home without your partner’s income. If they have to move out and pay for an alternative place to live they may not have as much income to devote to the existing mortgage or rent. If the two of you cannot afford separate residences, in the absence of violence or abuse, you both will probably have to learn to live with the situation until your assets are divided. This path may involve setting up house rules and a schedule of when you will use the home and care for the children without the other present. This is sometimes called “the parent in charge” plan.
Whether the court will decide that your spouse needs to move out while the divorce is pending is dependent on your circumstances. However, unless you or your children are at risk because of the other person, the court is unlikely to make them move out. Ideally, you will be able to resolve your case quickly and cooperatively during the process so that you are able to move on.
