Family Law Attorneys

Divorce FAQs: Do I Have to Vacate My Marital Home?

Divorce FAQs: Do I Have to Vacate My Marital Home?

Whether you're considering a divorce or have already started the process, you probably have many questions. One of the most commonly asked questions is whether someone has to vacate their marital home after they have been served (or served their spouse) with divorce papers. It is not uncommon to worry that your spouse will attempt to force you out of your home. You may have even been told to get out by your spouse. Is that legal?

Below we answer this question and provide more information on what happens to the marital home once a divorce is initiated. Keep reading to learn more.

Who Has to Leave the House in a Divorce?

Just because divorce has been initiated doesn't mean that one spouse must vacate the marital home. While it may be uncomfortable to remain living together, simply filing for divorce is not enough to force someone out of the house. Furthermore, not all families can afford to maintain two households while going through a divorce. In these cases, it can make sense for both parties to remain in the marital home together until their divorce is finalized and their finances have stabilized.

That being said, one spouse may request that they receive sole use and occupancy of the marital home while going through a divorce. This is done by petitioning the court. If you choose to request this, you must outline to the court why this order is necessary. Alternatively, the divorcing parties may also discuss and negotiate this issue as part of the divorce process, coming to a mutual agreement that one party will move out (more on this below).

If your spouse is telling you that you must move out of the home or is trying to intimidate you into leaving, but you do not have an official court order telling you to do so, you should consult an attorney before doing anything. In some cases, it may be in your best interests to remain in the marital home until ordered otherwise by the court. Regardless, always speak to an attorney before making major decisions like leaving your marital home during a divorce.

When Divorcing Spouses Agree

If you or your spouse has initiated a divorce, you both may agree that it is in your family's best interest for one of you to move out. This frequently happens in cases where there is a lot of tension and/or there are minor children present.

Many parents who are struggling to get along find that the best way to shield their children from some of the stress of the divorce is for one parent to remove themselves from the home, thereby limiting the amount of fighting the children are exposed to. However, this is not best for all families, and there may be other options.

Before agreeing to move out of the marital home, you should consult with a divorce attorney to ensure this is in your best interests.

Order to Vacate Marital Home

In cases of domestic violence or situations in which the safety of one of the spouses and/or any minor children residing in the house, the courts will step in and remove the opposing party. However, motions to vacate are not taken lightly by the courts, and these orders function very similarly to restraining orders.

Under Mass. Gen. Laws c.203 s. 34B, the court may order either the husband or wife to:

"vacate forthwith the marital home for a period of time not exceeding ninety days, and upon further motion for such additional certain period of time, as the court deems necessary or appropriate if the court finds, after a hearing, that the health, safety or welfare of the moving party or any minor children residing with the parties would be endangered or substantially impaired by a failure to enter such an order."

In these cases, the opposing party must be given notice of at least three days that the hearing is taking place, and they are allowed to appear and be heard either in person or by their attorney. Additionally, if the moving party has demonstrated that there is an immediate danger to their health, safety, or welfare (or a threat to that of their minor children), a temporary order to vacate may be issued without notice. Furthermore, the courts also have the jurisdiction to issue an order to vacate even if the opposing party is not residing in the marital home when the order is issued.

Before asking the courts to issue an order to vacate, you should speak with our law firm about your situation. At Kovacs Law, P.C., we have helped many clients deal with difficult divorce situations, including filing motions to vacate, and we can help you throughout this process.

Always Consult Your Attorney

Every family is different, and consequently, every divorce case is unique. Irrespective of whether you were the one to initiate the divorce or not, you should always consult with an experienced divorce attorney before vacating your home. At Kovacs Law, P.C., we know how heartbreaking and stressful divorce is, even when you know it is in your family's best interest. We are here to help during this difficult and confusing time.

Send us a message online to schedule a consultation today.