You’re thinking about filing for divorce but you don’t know what your rights are with regard to remaining in the marital home during the divorce?  Or you want to know if you can get your spouse out of the home during the divorce?  The short answer is that neither party can be forced to move out of the marital home without a Court Order.  This is true regardless of whether you own a home or are renting a home.

In order to obtain what is called “exclusive occupancy” of the home in which you’ve lived with your spouse, you have seek leave of Court.  We do that by filing a motion for exclusive occupancy requesting that the Court order your spouse to move out so that you can live in the home until the divorce is finalized.

It doesn’t matter whose name is on the deed or who pays the mortgage or the rent.  Whether the Court grants you exclusive occupancy depends solely on your need for it. 

If, for example, you are primarily responsible for caring for the children in the home and the environment in the home has become so unpleasant it is affecting the children, a Court may grant you exclusive occupancy during the divorce, particularly if your spouse is able to afford alternative living arrangements or has another place to live during the pendency of the divorce. 

If there is a history of domestic abuse or violence and the atmosphere in the home is unsafe, yet you cannot afford to move, you will want to file a motion for exclusive occupancy. 

I encourage couples to live separately during a divorce because it minimizes tension which is always a good thing.  Minimizing tension during the process allows both parties to make better long-term decisions rather than reacting constantly to day to day disruptions.