How Can I Get My Husband Out of the House If He Refuses to Leave?

As many women in the middle of a separation or divorce can attest to, it is not easy to get a spouse or former partner out of a shared home. This is especially true if someone does not want to leave voluntarily. After all, arranging a move can be time-consuming, expensive, and stressful.  Quite apart from the logistics, a spouse or former partner may be advised by their lawyer not to move until the divorce is fully negotiated and finalized.

How Will a Court React if One Person Leaves the Home?

Many people are afraid that if they leave the marital residence, it will be perceived as “abandoning their family” and waiving their rights to custody, visitation, or the home itself. The facts of every case are different, and a temporary move will not mean that you are abandoning your claim to your interest in the home or waiving visitation with your children. However, it may potentially impact custody. For example, if you left the home and the children with your partner, it might be perceived by the court that you gave temporary de facto custody to their other parent. Of course, every case is fact-specific, and the details surrounding why, when, and how you left the home will vary from one family to the next.

Generally, Courts are reluctant to force a party to move out of a marital residence when they are also named on a lease or deed. However, in extreme circumstances, a court may order someone to vacate a marital residence.

Court Intervention When in Danger

When your living environment has become dangerous or abusive, you should consider filing an emergency motion to have the Court order your husband/partner to vacate the marital residence. Your and your children’s safety is always the first priority.  

Court involvement happens when there are serious allegations involving endangerment, domestic violence, or child abuse. In these instances, you must obtain a court order to get a soon-to-be ex-husband or former partner out of the shared residence. Check with a divorce attorney in your jurisdiction before proceeding.  In New York City, where I practice, there are two ways of doing this. The first way is that you can go to Family Court and file a family offense petition to obtain an order of protection and ask for a “full stay away order.” A full stay-away order of protection will specify that your soon-to-be ex-husband or former partner has to stay away from your home, place of business, your school, the children’s school/daycare, etc. This may be the fastest way to get a spouse/partner out of a shared residence. 

The second way is to file a motion called an Emergency Order to Show Cause in the Supreme Court as part of your divorce.

However, do NOT attempt to obtain a court order this way if your claims are not legitimate.

Judges and referees have become increasingly skeptical of handing out orders of protection without credible evidence of abuse — especially in divorce cases. Always include copies of police reports or domestic incident reports, videos/photographs of personal injuries that you obtained as a result of the physical violence committed against you and the children, and photographs or videos of property destruction caused by your soon-to-be ex. Affidavits from any potential witnesses are also helpful. (Although most abusers do not strike when others are present.) Be mindful that some attorneys may misapply this application in attempts to provide their clients with a strategic upper hand in divorce litigation.

Make certain that you are only seeking a court order for your Ex to vacate the marital residence if there is a genuine and legitimate need for one.

SAS TIP: Question an attorney who advises you to file for an order of protection without seeking evidence of your claims or a detailed explanation of what transpired during the alleged incidents and the dates when they occurred.

Other Strategies to Get Your Soon-to-Be Ex Out When There Is No Abuse

Courts will usually rubber-stamp one party moving out of the home voluntarily temporarily. This does not preclude the party who moved out from having ownership interests in the home or the personal property contained within.

If someone leaves the marital residence voluntarily, count yourself lucky. Once they leave, it is unlikely that a court will permit them back into the home pending final resolution of the case.

In high-net-worth divorces, the parties may own multiple residences. In those rare circumstances, a move may be seamless because there is another property at the parties’ disposal. It is common for one spouse to reside in the vacation home while the case is being negotiated between the spouses or lawyers, or even litigated in court.

SAS TIP: If you are in a toxic marriage yet unable to live apart, you might benefit from reading how to separate from your spouse while living together.

Skilled Negotiation/Mediation/Alternative Dispute Resolution

Since most people do not have the luxury of owning multiple residences, another avenue is skilled negotiation, divorce mediation, or alternative dispute resolution to resolve the issue of housing. In order to get your spouse out of the house voluntarily, you might need to set up some assurances first. 

Here are 5 Examples of Smart Assurances to Secure

Establish a visitation schedule for the children

If the parties have children and soon-to-be-ex claims that he does not want to vacate the residence because he will miss spending time with the children, offer to devise a written visitation schedule that specifies the times, days, and locations for visits between the children and their father. Reassure him that you will do everything that you can to facilitate visitation. (This is viable when you do not have safety concerns with your Ex spending time with the children.) Be sure to keep an email chain or text message chain (anything in writing) that can be used at a later date to prove that you have been voluntarily facilitating visitation between your ex and the kids.

Make it as easy as possible for the other side to move out

Consider offering physical assistance to facilitate the relocation. Offer to help pack and arrange moving logistics. If that is not realistic, offer to float the other side some money for movers. Consider financially contributing towards a portion of a security deposit for a new rental apartment for your Ex. Do whatever you can reasonably do to encourage the other party to vacate the marital residence voluntarily. Keep records of your financial contributions in the form of receipts/invoices.

Create a list of divisible personal property

Figure out before someone leaves the residence, how the personal property should be split. Do you really need multiple televisions or sound systems? Is there expensive kitchenware that the other side could care less about? Make appropriate offers and trade-offs for the approximate value of each big-ticket item?

Allow time to collect personal property items

Arrange a mutually convenient time and date when the other party can re-enter the marital residence post-departure to obtain their necessary belongings. If you feel unsafe with them being in the home at the same time as you, be certain to request a police escort in your court filings. This way, your spouse can enter the home in a safe manner. Frequently, judges will include this provision in an order of protection.

Consider contributing financially

Is your spouse legitimately unable to pay? If so, get a loan from a friend, cash out some of your bonus, or do whatever you can to financially facilitate his departure. It is worth the investment for your peace of mind. Again, keep records of your financial contributions.

3 Things I Suggest You Also Do to Protect You

Self-Help

Change the locks. This only works on an immediate short-term basis and is usually a last resort when all else has failed. If your case cannot be settled out of court, most judges and referees frown upon learning that a party engaged in “self-help” and changed the locks on the marital home. Locate and carefully review your property documents. Make certain that your name is listed on the lease or deed. If it is not, consult with an attorney immediately because you may be the one who does not have a legal right to continue residing in your home. Keep in mind that if your partner’s name is on the lease or deed, they also have a legal right to reside in the marital residence and have equal ownership and access to the home.

Assess You and Your Family’s Psychological Health

If your partner refuses to leave and you or your children are experiencing an emotionally unhealthy or toxic situation, you may consider vacating the residence for peace of mind and psychological security. This does not mean that you are not entitled to your fair share of the value of the marital residence via equitable distribution at a later date. Rather, it means that for now, you are finding a healthier living situation because the other side refuses to leave. From my professional perspective, this is a worthy consideration for many women. Ask yourself if there is a family member, trusted friend, or close colleague whom you can stay with temporarily until you figure out a long-term living solution to protect you and your children’s mental well-being.

Prepare financially

Money buys freedom. If you have a savings account or an investment account from which you can draw, consider using those funds to secure new housing. If you do not have a savings account, start building one! This is especially important if you are being physically, emotionally, or financially abused.

You want to have your finances as tidy as possible before leaving and commencing a divorce action.

Consider These 3 Risks to the Above Suggested Strategies:

No one plan fits all people, and every scenario has its risks. Before I close, I’d like to reference three risks to be aware of, and why it always makes sense to consult with a divorce attorney focused on your story if you are thinking about divorce, separating, or wondering when to leave your husband.

SAS TIP: Read here to learn how to find a good divorce attorney.

• Leaving the marital residence can be costly financially and emotionally. Nothing about the divorce process is cheap. 
• There is also the fear of the unknown and the inability to predict what will happen in the future. Going to the court to file an order of protection may be stressful. An attorney may help you through the process.
• Your soon-to-be ex-spouse may get angrier once you move out of the shared home. Statistics have shown that women leaving an abusive marriage experience the highest likelihood of dangerous retaliation from a former domestic partner. That is why advanced safety planning and financial planning are key. Ensure that you and the children have a safe place to stay. Explain to those in your inner circle not to divulge any details regarding where you are currently residing.

NOTES

A zealous advocate for her clients, Meredith L. Singer is an experienced NYC divorce attorney who strives to keep legal representation affordable and accessible.

If you live in New York City or Brooklyn, schedule your free 15-minute consultation with Meredith by emailing her at meredithsingerlaw@gmail.com

Visit her website here.

 

*We support same-sex marriages. For the sake of simplicity in this article, however, we refer to your spouse as your “husband” or a “he.”