It can be surprising for a divorce client to learn that both spouses in a divorce may reside in the marital home while the action is pending. Many people mistakenly believe that once a divorce complaint is filed, one spouse must leave the home as a matter of course. To the contrary, for one spouse to force the other to vacate the marital home through an order of the Court, they must meet a high standard.
Understandably, it is difficult for two spouses to live together amicably during a divorce. Many times it is a financial necessity that each knows they must endure. Other times, spouses will refuse to move out due to their belief that it could put them at a disadvantage in the divorce. Whatever the reason may be, divorcing spouses need to understand that they cannot force their spouse out of the home because of simple annoyance or aggravation. Living in an unpleasant situation with daily tension will likely not be enough to convince a Court that you should have sole and exclusive use of your home during the divorce.
The best route for one spouse to vacate the marital home would be to do so by agreement. If it is financially feasible, two reasonable parties should determine who will leave and who will stay. The parties should take into account who will be able to afford the home on their own during and after the divorce, and more importantly, how it affects the children, if any are involved. In most situations, it is in the child’s best interest to stay in the home, or at the very least in the same school district.
Still, some parties simply cannot agree on who should move out. If this is the case, a court will only order one spouse to vacate if, pursuant to M.G.L. ch. 208 § 34B, “the court finds, after a hearing, that the health, safety or welfare of the moving party or any minor children residing with the parties would be endangered or substantially impaired by a failure to enter such an order.” Furthermore, the Court only has the power to order the spouse to vacate for a period of time not to exceed 90 days. This time can be extended upon further motion.
It is important that a spouse who wishes to file a motion to vacate the marital home understand the complexities involved in such a motion. The moving party must be able to show with specificity how their health or safety (or that of the children) is endangered or how it is substantially impaired. The ways in which someone’s health, safety or welfare can be impaired is fact specific and is different in every case. It is extremely important to present and prepare this motion and an affidavit properly so that it does not get rejected by the court when, in fact, it should have been allowed.
If you are considering a divorce action and this issue will present itself, you should seek the advice of an experienced family attorney. Divorce matters can be complex and overwhelming. This is just one of the many complicated issues that the parties will encounter upon terminating their marriage. Contacting an experienced family attorney is always the best first step.