Possession of the Marital Home in Divorce
Divorce and the Concept of Who Will Leave the Marital Home
In the concept of marital perfection, a husband and a wife live happily together in their marital home. However, marital bliss is not always a lasting thing. One of the first things that will be at issue if divorce or separation comes calling is who will have possession of the marital residence.
Who Has to Go
Ideally is divorce or separation becomes a reality, the two spouses will be able to sit down and discuss the concept of who will have possession of the marital residence between themselves. However, effective spousal communication is not always possible in a situation of divorce or separation. Given the tension that can accompany divorce or separation, it is not always possible and not always a good idea to have two spouses trying to weather out a divorce in the same house.
The Simple Alternative
The simplest alternative to who will have possession of the marital residence is for the parties, through spousal communication, to decide and work together so one of them can stay in the home. It is also possible, through divorce mediation or negotiations, to work towards this resolution if it is not possible through spousal communication. In other words, if the two parties cannot work out the specifics, they may submit the matter to divorce mediation in an effort to resolve the problem.
There are many benefits to this approach as it allows the parties to work together and be creative in how they approach the divorce or separation. It allows them to control the process, not have it forced upon them and, most importantly, it allows them control over the time line.
Fault Based Separation
Many states allow one of the parties to a divorce to file a petition with the court seeking an order requiring the other spouse to vacate the house while continuing to reside in the same residence. However, generally only in a particular set of circumstances. These circumstances usually require the spouse filing the petition to have been aggrieved in some fashion, e.g. adultery, substance abuse or abuse. The theory is that but for the bad act perpetrated upon them, they should not be forced to relocate. If the at fault spouse refuses to leave then the court can, upon a proper showing, be forced under court order to leave.
Domestic Violence
Most states allow for a spouse that has been the victim of domestic violence to petition the court for an order protecting them from such conduct which frequently includes having the other spouse vacate the marital residence. If the court finds that the domestic violence occurred, then the other spouse can be forced to leave immediately and the other spouse will have possession of the home.
In any case where the court orders an at fault spouse to leave, that spouse will be restrained from entering the home and the non-aggrieved spouse will be granted exclusive possession of the home.
Other Options
The standards for causing a spouse to leave a marital residence are controlled by the laws of the individual states so from state to state there may be additional options available. If this is a situation you are experiencing, contact an attorney in your state and determine what options are available.
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