You are embroiled in a nasty divorce and things at home are getting very ugly very fast. The movie The War of the Roses captured the situation perfectly when two people who used to love each other and now hate each other are forced to live together under the same roof. Kathleen Turner and Michael Douglas’ characters did everything in their power to try to get the other to move out of the house. Clients often ask if they can make the other party move out of the house, or if one party has already moved out of the house whether they can now change the locks to prevent that party from moving back in.
Both parties have equal rights to live in and remain in the marital residence pending a divorce and neither party has the right to exclude the other. So don’t change the locks just yet! However, a court does have the power to award one party exclusive possession of the marital residence while a divorce action is pending depending on the circumstances of the case. If there are children and the other party is making it very difficult to live in peace under the same roof, a court may determine that it is not in the best interest of the children to have the parties living together. If there are no children, the party seeking exclusive possession will need to show that the other party is really making it unbearable to live under the same roof. This can often be a difficult task. Name calling and leaving dirty laundry on the floor is not enough. In making a decision, a court will also consider if the party to be excluded from the house has the financial means to move out and pay for replacement housing, or move in with a friend or relative. If they don’t the court may not believe it is fair to force them out with no where to go and no way to pay for another place to live.
If one party moves out voluntarily, the other party still cannot change the locks, but the issue of whether it is really a problem depends on a number of factors. How long ago did that party move out and have they been back? The longer the time period, the more likely a court would find it is reasonable to change the locks. Is there a safety concern? The party remaining in the home may be concerned that the other party could enter the home in the middle of the night, and not knowing that it is her spouse, may think it is a burglar. There is no cut and dry answer and if you are seeking to exclude your spouse from the home, or if you have been excluded, you should seek legal guidance regarding how best to proceed.
