Can My Spouse Refuse to Move Out During the Divorce?

Posted on July 05, 2017 04:33pm
Can My Spouse Refuse to Move Out During the Divorce?

Once you and your spouse decide to divorce, you’ll likely discuss how living arrangements will work going forward. For some couples, one spouse will decide to move out of the marital home, but for others, the decision can be trickier, and both spouses may insist on staying. If this is an issue for you, certain circumstances may enable you to have your spouse ordered from the home, but not always.

What are my rights?

Both spouses usually have a right to remain in their shared home until the property has been awarded to one spouse or the other. If you and your spouse purchased your home together, or it is owned under both of your names, it will most likely be considered marital or shared property. All marital property legally belongs to both spouses until the divorce has divided those shared assets, either splitting the ownership, selling the property and splitting the profit, or awarding the property to one spouse.

Can I make my spouse move out?

If you own the home

If only one spouse owns the home and it is not shared as marital property, the owner of the home should have the authority to have the non-owning spouse removed.

Safety reasons

In situations where one spouse is considered a danger to the other or to their children, the abusive spouse can be ordered to leave the home. For example, if the spouse in question was abusive and the abuse has been proven or documented, the court may agree that co-habitation is potentially dangerous. If you do not have documented proof of abuse but you feel you or your children are under threat of harm, you may still petition the court for an order requiring that your spouse leave. Additionally, if you or your children who live with you have a restraining order against your spouse, they will not be able to live there.

For the well-being of children

It may also be possible to have your spouse ordered from the home if you can prove to the court that their residence is creating an unhealthy, stressful environment for your children. For example, if your spouse is confrontational and the two of you are unable to have a calm conversation, leading to traumatic arguments your children frequently witness, you may argue to the court that this is psychologically harmful and must be amended.

How to negotiate living arrangements during the divorce

In most situations, the best method to settle disagreements over living arrangements during your divorce process is to negotiate with your spouse. This can be done with the assistance of your divorce attorneys, which is highly recommended. Try to communicate amicably, and see if you two can come to an understanding. For example, if you both wish to live there in order to care for your children, try to negotiate a temporary shared custody arrangement until a legally binding one can be settled in court. Or, trade off victories. If you want the home, try offering your spouse something in return until you can properly divide your shared assets.

In any situation, its best to speak to your divorce lawyer about what your options are before taking any action. Every divorce is different, and each couple faces different circumstances depending on the terms of their divorce, such as whether or not they have children, who is the primary caretaker of the children, the ownership of certain assets, contribution to the mortgage, and so on. Explore your options and seek trustworthy legal counsel from an experienced firm that has your best interest at heart.

Contact McKinley Irvin in our Oregon office today to discuss your divorce and property division.
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