Can I Remove My Spouse From Our Home During the Divorce Litigation?

Obermayer Rebmann Maxwell & Hippel LLP

House and lawWe know how difficult it is to remain under the same roof with your spouse during a divorce.  Generally, during an initial consultation, clients always ask us what is the quickest way to remove his/her spouse from the marital residence. Unfortunately, since generally neither party has a superior right to the home, the answer is that neither party can remove the other from the house.  We know that this answer is often frustrating to hear.

Although it is very difficult to remain in the home with your spouse during a divorce, this generally expedites the divorce litigation. This is because you and your spouse are more likely to try and resolve your outstanding issues so that you can separate as quickly as possible. If you have already separated during the course of the divorce litigation, then you are both less motivated to finalize your divorce, i.e. you are relatively more comfortable.

However, like every law, there are always exceptions. If you obtain a restraining order against your spouse during the course of the divorce litigation, then your spouse will not be permitted, by court order, to reside in the same house with you. Be careful when going through divorce litigation, because unfortunately some spouses will file a fictitious/false temporary restraining order against his/her spouse in the hope that they can successfully remove their spouse from the home.

You are also permitted to file a motion with the court to request that the court remove your spouse from the home, even if you do not obtain a restraining order. If you are able to present evidence to the court during a hearing that it is not in the best interests of your children for you and your spouse to live together or that it is dangerous or mentally damaging for you to continue to reside with your spouse, then you will be successful in removing your spouse. However, this is a very difficult burden and most judges generally will allow the spouse to remain in the home.    

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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