The marital home is one of the most valuable assets you have to divide during a divorce, and subsequently it can be the most difficult one to divide. There are a lot of things you can and cannot do with your home during a divorce, which vary depending on a variety of factors.
When a couple decides to divorce, it does not automatically mean one spouse will pack up and move out. Each spouse has probably contributed significantly to the home’s mortgage or rent payments over the years, which means each spouse has an equal right to live in the home. Unless they come to an agreement, both spouses have the right to live in the marital home until the court orders someone to move out, which usually takes a great deal of time. You may want to change the locks on your house during a divorce. However, it is never a good idea to do this without consulting your lawyer. The rules about changing the locks vary from state to state. You can file for exclusive residency of the home, which would then allow you to legally change the locks.
After a spouse has filed for divorce, both parties have the right to file pendente lite motions with the court. The pendente lite motions only apply until the divorce is final. You can file a pendente lite motion for exclusive residency of the marital home by asking a judge to order your spouse to move out while your divorce is pending. Still, you’ll have to give a compelling reason for the judge to order your spouse out of their own home.
Typically, a court will order exclusive residency of the marital home only if one spouse is abusive. The spouse’s behavior must be an immediate danger to the family, though. actual physical violence is not always necessary. If your spouse threatens you or verbally abuses you so severely and often that you and your children are living in fear, this is usually sufficient grounds to order the spouse out of the home. You will need some type of proof of the abuse for the court. For example, if you have to call law enforcement because you feel like you or your children were in danger, you could obtain the police reports for documentation. Or, if your spouse has harmed you or the children, you can provide doctors’ reports and photos of your injuries. Yo provide therapist records or testimony of individuals who have witnesses it.
If you feel like you need immediate protection, file for a domestic violence restraining order. This will remove the spouse from your home, but only for a limited amount of time. The courts will issue you a temporary restraining order which will remain in effect until the date of your second hearing, where you can obtain a permanent restraining order.
The situation changes entirely when one spouse voluntarily moves out of the home during the divorce. When one spouse leaves voluntarily and then decides they want to return home, they have changed the status quo and you might be granted an order that prevents the spouse from moving back in without requiring you to prove abuse.