One of the first questions that I am asked is if a person must continue to reside with their spouse during the pendency of the divorce. My advice is that, if possible, sit down with your spouse and see if it is financially feasible to live apart. Remember, there will be double the expenses as now there will be two households to maintain. The person leaving may have family that they can reside with to help alleviate this cost. Ultimately, if there is not a voluntary move, it is difficult to 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 issue of one spouse vacating the home when there are children involved. If there are children, the issue gets more complicated. First, you would be asking a parent to leave their children during this difficult time. Keeping both parents in the house may be in the best interests of the children. Second, if one person does leave, an argument can be made that the spouse who left relinquished residential custody to the remaining spouse. Therefore, if custody is an issue, leaving the marital residence has far reaching consequences and you should carefully consider your desire for residential custody. If you and your spouse cannot get along in front of the children, then it might be in their best interest for someone 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.
So, how do you remove a spouse from the martial residence? The easiest way is--- voluntarily. Additionally, if an alternate residence is established then, it is easier to say that the return would cause marital strife. 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 for your spouse to be in the same house. You will need to convince the court that the “strife” in the home is unbearable and harmful especially for the children.
Whatever the decision, if there are children, act in their best interests as they should not be subjected to what goes on between you and your spouse.