The irony of continuing to reside together during a divorce action after you have decided that you no longer want to remain married is palpable and defies logic. The fact of the matter is that more often than not, and with the exception of those circumstances when one spouse has vacated the home prior to the commencement of an action, the parties continue to reside together until the resolution of the action. Of course, this situation poses numerous challenges for all involved, as either one or both of the parties will prefer to live separate and apart ASAP.
There are numerous reasons why the parties will continue to live together during a divorce action, most of which do not involve a desire to do so. The main reason is often financial, as the ability to maintain two separate homes is often cost prohibitive. Another common concern is that when one spouse vacates, he or she may expose himself or herself to a claim for exclusive use and occupancy for the other spouse due to a voluntary abandonment of the home. Whatever the reason, and until such time as circumstances change, it is imperative that the parties peacefully co-exist. Of course, when there are children involved, the need to do so is even greater.
If the idea of living together during a divorce action is intolerable, and it is economically feasible, the parties can stipulate to live separately, and provide that one party has interim exclusive use and occupancy of the home during the action. In the absence of such an agreement, one party, under circumstances where there is disharmony, discord and even danger to person or property, a party can seek exclusive use and occupancy from the Court. In circumstances when there is immediate danger and need, a Temporary Order of Protection can be applied for, with a request that the offending spouse be vacated from the home. This request, often times initiated in the Family Court, can include emergency interim custody of the children, interim child support, and even include protection for the family pet.
In most cases, it is undeniably difficult and undesirable to continue to reside together during a divorce action, especially one which is highly contentious. Unfortunately, the economic reality of most situations compel cohabitation, and require both parties to remain level headed and tolerant in connection with their interactions within the home. In order to prevent additional litigation and hostility, parties may choose to live separately inside the home, agreeing upon separate areas of access. When this is not practical, parties may choose to be in the residence at varying times, if possible.
While it is normal for even non-divorcing parties to disagree and argue inside the home, parties going through a divorce run an increased risk of legal consequences when and if any such interaction is present. Sadly, in some circumstances, even when there is no inciting incident, one spouse, in desperately wanting the other removed, will fabricate or provoke the other, resulting in a protective order and vacatur. This of course results, at a minimum, in increased hostility and legal expense in the divorce action.
If it is necessary to continue to reside together during a divorce action, it is important to be calm, reasonable and even self-protective. In the event that the situation becomes intolerable, speak to your attorney about any options available in connection with your particular circumstances.