Once your divorce commences one of the first questions that I am asked is if a person must continue to reside with his or her spouse during the pendency of the divorce. First, sit down with your spouse and see if it is financially practical to live apart. Once one party moves out there are additional costs such as rent, utilities and any other expenses that comes with living on your own. One person might have family and can temporarily move in with them to save money. However, if there is not a voluntary move, it is hard to simply have one person move out.
Before addressing the procedure for removing a person from the marital residence, also known as obtaining exclusive use and occupancy, we should address the same issue when there are children involved. If there are children, then the issue is not that simple. First, you are asking a parent to leave their children. Depending on the tone of the matter, keeping both of you in the house may be in the best interests of the children. However, if you and your spouse cannot get along in front of the children, then it might be in their best interest for one parent to leave the house. While there may be unbearable tension between the two of you, try to put it aside in front of the children because they should not be subjected to your divorce issues.
Second, if one person does leave, an argument can be made that the spouse who left believes that the remaining parent is capable of being the residential parent of the children. Therefore, if custody is an issue, leaving the marital residence has far reaching consequences and you should carefully consider your long term goal before considering leaving the home that your children will still reside in.
So, how do you remove a spouse from the martial residence? First, voluntarily. If they set up a separate residence, then it is easier to say to a court that they should not come back. Hopefully with a new residence, you will not need to involve the courts. If an agreement cannot be reached, you will need to go to court and argue that it is not feasible to live with your spouse in the same house. You will need to convince the court that the “strife” in the home is unbearable and harmful not just to you, but especially for the children. In addition to this stated and hopefully substantiated argument, it will help if your spouse has a residence to relocate.
Divorce is difficult enough, make sure that whatever you decide is in the family’s best interest and try to resolve as many issue as possible between the two of you.