When a couple decides to divorce, the question of who will remain in the marital home can become contentious. One spouse may leave for a period of time, then wish to return. Or a spouse can return home from work one day to find the locks changed. While these situations do happen, you do not want them to escalate to the point where the police are called or things turn violent.
In general, you are not allowed to lock your spouse out of the house unless there is a court order in place that prevents him or her from being there. And while you certainly have the right to change the locks on your home, you do not have the right to prevent your spouse from returning to the home, even if they have to break in.
Typically, New Jersey courts will not force either spouse to leave the marital home. However, there are a few exceptions:
Patterns of abusive behavior or domestic violence. Under the New Jersey Prevention of Domestic Violence Act, a judge can prohibit an abusive spouse from staying in the marital home by issuing a restraining order. If a spouse’s behavior does not rise to the level of domestic violence but could be considered dangerous or against the best interests of the children, you can have your attorney file a motion asking the court to order your spouse to move. You will need substantial evidence to prevail in this claim. Unless there are provable extreme circumstances, your chance for success is typically low.
You own the home separately. Unfortunately, sole ownership does not allow you to simply order your spouse out of the house. If it has been the principal residence for both spouses during the marriage, then both spouses have the right to remain there while a divorce action is pending.
You need to sell. If it is financially necessary to sell the marital home but your spouse disagrees, you will have to petition the court for permission to sell it during the divorce. However, this will typically not be granted unless there are compelling financial reasons to sell.
The preferable method for physically separating from your spouse is to execute a separation agreement, which is a written contract between two separating spouses that typically remains in place until you either reconcile or divorce.
Creating a separation agreement does not require a trip to court if you are able to work out the terms of the agreement on your own, usually with the help of a family law attorney. The process is similar to negotiating any other kind of contract and once the terms are agreed to and the agreement is signed, it is considered binding. If you and your spouse cannot agree on the terms of the separation agreement, you can try mediation or go to court.
When you are faced with an important life decision regarding a key family relationship, the advice and assistance of an experienced family law attorney often prove crucial to your understanding of the issues involved and your satisfaction with the ultimate outcome of your family law matter. Contact us today for your free consultation.