Handling an Unbearable Living Arrangement When You’re Separating

Divorce is emotionally difficult even before you get down to weighing the tough decisions such as child custody and property division. When one party makes the split itself more contentious, you’re in for another type of fight.

Whether your spouse is expecting the separation or not, he or she may decide to stand his or her ground by refusing to leave the marital home. The 1989 movie “War of the Roses” depicted the very worst case scenario when Michael Douglas and Kathleen Turner entered a high conflict divorce by drawing a strategic line through their mansion and proceeding to antagonize one another to the bitter end. The cautionary tale is exactly what a good family law attorney will work hard to prevent.

How do I get my spouse out of the house?

As a legally married couple, any home you purchased after your marriage is typically considered marital property regardless of where the purchase funds came from. That gives you both equal rights to reside in the home regardless of your choice to separate. If you intend to remain in the home, you may have to deal with the issue of a spouse digging in and refusing to move out.

Some spouses may refuse to leave because they:

• Have financial issues preventing them from securing another residence
• Feel they deserve to remain in the home since you’re the one who wants the divorce
• Want to make you feel uncomfortable because it makes them feel better
• Are abusive and want continued control by threatening or bullying you in a place you can’t escape

The good news is that filing for divorce comes with the ability to request a temporary hearing where a judge may decide who is able to remain in the marital home. With a well-crafted argument and supporting evidence, your attorney can make a case for your spouse to be required to vacate the home.

Things to be mindful of:

• There is no guarantee you will receive the home, though your chances improve if you owned it individually before marriage.
• Typically a parent who retains custody of their children has a good chance of being awarded exclusive use and possession of the family home to serve the best interest of the children and maintaining their stability.
• If your situation has become dangerous and you need more immediate help, you can look into filing a protective order that can require your spouse to move out.
• If you are successful, once the temporary order is in effect, you are able to hold your spouse in contempt of a court order if he or she doesn’t comply by moving out.

What if we’re not married, or a step-child lives with us?

Inviting your romantic partner and his/her children to live with you has its own complications when the relationship ends, and you want them out of your space. The typical rules governing asset division of marital property don’t apply here, and your now former boyfriend or girlfriend has no obvious ownership claim to your home.

Things can get complicated, however, if the reason for your split was related to domestic violence. In such cases, because they are unrelated to you, you may need a peace order. Peace orders have the same effect as protective orders and may become necessary when:

• You have been involved in a relationship with someone to whom you are not married and want him/her to move out of your residence.
• Your significant other has children unrelated to you who live with you and you want removed from your home.
• You’re married but have step-children who are engaging in harassing or other disturbing behavior and they have refused to leave.

Your ex-partner and his/her children do have rights when it comes to being thrown out of your home if they resided there for at least 90 days during the year prior to filing for the peace order.

To receive experienced guidance on your family law matter, we invite you to schedule a consultation with one of our high-conflict divorce attorneys at the Fulton family law firm at McCabe Russell, P.A. by calling 443-917-3347, or simply reach out to us through our contact form. We also maintain offices in Bethesda, Rockville, and Columbia for your convenience.