Who Gets to Stay in the House During the Divorce?

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by | May 1, 2019 | Blog, Divorce

When couples decide to divorce, typically, they don’t want to keep living together. On the other hand, neither spouse may want to be the one to leave the marital home. If there are children, this becomes more complicated as parents must also wrestle with deciding how to accommodate both parent’s rights regarding the children once one parent moves out. Who has the right to stay in the house during the divorce? Can one spouse lock out the other?

Under New York law, both spouses have the right to remain in the marital home during the divorce. Neither spouse can lock the other out of the marital home or otherwise prevent one spouse from getting back in. A spouse can, however, ask the court to order the other spouse to move out under one of the following circumstances:

(a) When a spouse has voluntarily established an alternative residence, and a return would cause domestic strife; or

(b) Upon a showing that exclusive occupancy is necessary to protect safety of persons or property.

These exceptions are very limited. It is not enough that the parties are fighting and cannot get along. The first option envisions that a spouse has permanently abandoned the home.

The second option usually involves domestic abuse allegations. Typically the courts require a showing of physical abuse. The court will require evidence such as a history of abuse, medical records, police reports and protective orders. It should be noted that a recent New York case did order one spouse to leave the home because the parent’s fighting was having a severe impact on the children. Nonetheless, the courts generally do not want to force a party to leave the marital home while the divorce is pending absent a very compelling reason.

If you are considering divorce, speak to an experienced attorney about your options. Please contact our office to learn how we can help you achieve the positive results you want.

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