When facing a divorce or considering a divorce in Massachusetts, a very common question asked by a client is whether or not the client should move out of the marital home. The dilemma most spouses face is that moving out of the marital home or staying in the marital home is a choice between two evils. If they stay together during the divorce process the tension between the couple can vary from just bearable to outright dangerous. On the other hand, if the couple splits apart, the difficulties involved with parenting, financial challenges and other circumstances can be overwhelming.
Can I Force My Spouse to Leave the Home?
On the face of this question, the answer is “no” you cannot force your spouse under normal conditions to leave the marital home simply because you are contemplating or undergoing a divorce in Massachusetts. However, there are a number of individual circumstances that make it possible for one spouse to leave. Consider the following:
Restraining Order Issues
M.G.L. 209A allows an abuse prevention order to be entered against one party when the party making the allegations can establish that they are in fear of another person attempting to cause physical harm to them, or that actual physical harm has been caused, or that they are in fear of imminent physical harm (that is serious), or they have have been caused to engage (against their will) in sex by force, threat of force, or under duress.
Where a restraining order can be obtained by one party against another, typically, the party that is the subject of the restraining order will be prevented from having any contact with that party. Where abuse of the above-mentioned kind can be demonstrated, this can be an effective method of maintaining control of the home – at least initially. Later as the divorce proceedings move forward, the disposition of the house will be at issue. Sometimes, a primary caregiver can retain the home for the purpose of providing care for the children of the marriage. At other times, the home will be sold and the proceeds divided equitably.
Getting Court Permission to Stay
It is also possible to motion the court through your attorney in a Massachusetts divorce to ask the judge to allow one spouse to obtain the use and occupancy of the home. Where supporting evidence might persuade a judge to allow such a motion, this could be an effective way to be the sole occupant of the home.
One Spouse Leaves the Home by Agreement
Through the negotiation process that is part of divorce in most Massachusetts divorces, it is might be possible to get the other side to agree to allow one spouse to live in the home. Often, agreements between spouses are reached where both spouses agree that it would be in the best interests of the children to remain in the current marital home.
A Motion to Vacate
Where the health, safety or welfare of one spouse or minor children might be at risk or substantially impaired the court might consider allowing a motion to vacate. Such a motion would force the spouse considered to be the cause of the risk to the health, safety or welfare to vacate the home for 90 days and subject to renewal thereafter.
Clearly there are many options that may be available circumstances depending. If you are a Massachusetts resident in need of an attorney to help you with your divorce, contact our offices at 978-273-8337…we can help.
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