Once you’ve made the decision that your marriage is over, you most likely want to get away from your spouse as quickly as possible. Ownership and occupancy of the marital home can be a hotly contested issue during a divorce. When you own and share the same home, you may wonder how you can get your spouse to leave before the divorce is finalized.
Exclusive Occupancy and Deeded Ownership
It is important to note that if you share a residence during marriage, it is considered the marital residence regardless of who actually owns it. The property might be your separate property, your spouse’s separate property, marital property owned by both of you, or property owned by another person or company that you and/or your spouse are renting or leasing. It does not matter who owns the property or whose name is on the lease.
If you live there during the marriage, it is the marital residence and the court can determine who may or may not continue to live in the property during the marriage. If the property is marital property, the court can also determine who will own and live in the property after the divorce.
You and your spouse may agree on your own to separate and live apart. This is the fastest and simplest way to get the space you need. However, if your separation agreement is just a verbal agreement between the two of you and if the home is jointly owned or owned solely by your spouse, your spouse will continue to have a legal right to access or even stay on the property even if you have both agreed to live apart. You cannot change the locks because you do not have sole legal possession of the property.
If you and your spouse create a legal separation agreement that is signed and submitted to the court, which contains your agreement about the occupancy of the home, you can obtain sole legal occupancy via this document. In this situation, you can change the locks and maintain sole occupancy of the property without any interference from your spouse. You do not have to let them in if the agreement does not entitle them to access.
If you and your spouse have a prenuptial or postnuptial agreement that specifies who is to have exclusive occupancy of the marital residence, you should follow the decisions made in that agreement. However, the agreement does not actually take legal effect until it is incorporated into a divorce filing and is not enforceable until that time.
You may be tempted to simply change the locks or alarm while your spouse is out, preventing them from returning. This is not a good idea, and you should always consult with your attorney about how you can best get exclusive occupancy of the home. Changing the locks or alarm or otherwise preventing your spouse from being able to enter the marital home can be considered constructive abandonment, which your spouse can use against you in the divorce and ultimately use to gain occupancy and ownership of the marital home for themselves. Until a court orders otherwise, both you and your spouse have the same legal access and ownership of the marital home. There are several methods available to legally obtain occupancy of the home.
Order of Protection
New York state allows the court to give one spouse exclusive occupancy of the marital home (regardless of who actually legally owns it) if there is domestic abuse that necessitates an order of protection. In general, a spouse who is abused can file for a temporary order of protection, with a stay away order including exclusive occupancy of the home, in an ex parte proceeding. This means the alleged abuser is not present at the hearing.
Courts are very sensitive to allegations of domestic abuse and will err on the side of protecting the alleged victim. Because of this, an application for a temporary order of protection, including exclusive occupancy of the marital home, is likely to be granted based simply on the victim’s allegations.
Once the temporary order is in place, it is very challenging to get it changed, and the spouse who has applied for the order is likely to retain exclusive occupancy for the pendency of the divorce. The spouse who is in possession of the home during the divorce is most likely to be granted possession after the divorce as well.
If your spouse voluntarily leaves the marital residence and takes their belongings with them, and does not return, your attorney can make the case that they have abandoned the marital residence and that you have obtained exclusive occupancy due to the abandonment. The court must rule that the abandonment has happened for you to have legal sole occupancy of the home.
Pendente Lite Order
Your attorney can file a motion for a pendente lite order asking that you be given exclusive occupancy of the home during the divorce case. In general, your attorney must show that it would be unsafe for the parties to continue to live together and that continuing to live together could lead to damage to people or property. As with an order of protection, once you have occupancy of the home during the pendency of the divorce, you are more likely to be granted permanent occupancy in the divorce judgment.
If you and your spouse both agree that you can have exclusive occupancy of the home while the divorce is moving forward, you must get this on the record and ordered by the court. Your attorney can enter a stipulation (agreement) verbally into the divorce record at court, or both sides can sign a stipulation agreement and submit it to the court. The court will then order exclusive occupancy based on this agreement. Until the court has ordered it, the agreement is not enforceable.
Continuing to live together while your divorce is moving forward or living separately with the fear that your spouse could re-enter your living space at any time is untenable for most people. Seeking legal exclusive occupancy of the marital home will protect you and provide the physical separation you need.