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Can You Force a Spouse Out of the Home During Divorce?

Once the decision to file for divorce is made, and perhaps before this point, living together with a soon-to-be ex can becomes incredibly difficult. Communication is usually poor and spouses often have trouble remaining patient over everyday issues that occur in every household. Typically, one spouse will recognize the need to remove him/herself from the home, and move out. This scenario does not happen in all marriages, though, and neither spouse may be willing to find a new place to live. In this situation, the question may arise whether it is possible to force one spouse to vacate the marital home until the divorce case is concluded. Both spouses generally have a right to remain in the home, so if one is to leave involuntarily, a court order will be necessary. Will a court consider this type of request in divorce, and if so, what type of justification will need to exist for a judge to agree? An exploration of these questions will follow below.

Property Rights Generally

Divorcing couples are required to divide marital property in the event of divorce, absent a premarital agreement stating a different result, and while Indiana law does allow for the classification of property as separate, all property is initially considered part of the marital estate. This includes property titled in the name of one spouse, acquired before marriage, or with outside funds. Thus, spouses can be reasonably assured that the marital home will squarely fall within the marital property category, meaning both spouses have an interest in it until the terms of the divorce are finalized. Marital property is divided according to what is fair under the circumstances, but the general allocation is 50/50, unless there are issues of one spouse wasting marital assets, vast economic disparity, or abuse, as examples. Courts evaluate a number of factors to determine which allocation is appropriate, and in the case of the marital home, may award one spouse sole possession and ownership in exchange for the other spouse a greater share of other assets, or the sale of the home and division of any proceeds.

Seeking Sole Possession of the Family Home

Since both spouses have a legitimate interest in the home, a spouse can not simply call police and ask to have the other spouse removed. However, Indiana divorce law does provide a mechanism for seeking possession of the home while the case is pending. At the start of a divorce petition, either spouse has the option to file a request for temporary relief, i.e., through a provisional order, while the case is pending, to account for all the significant changes that accompany this decision. In fact, the law permits a spouse to ask for temporary child support/custody, spousal maintenance, possession of property, including the family home, counseling, and a protective order. Getting a request granted is not automatic, though courts will almost always order temporary child support and custody arrangements. As a result, evidence of need must be demonstrated before a court will act. In the context of possession of the marital home, a few circumstances will make it more likely the judge will order one spouse to vacate. If there is continual conflict between the spouses, and the spouse seeking sole possession is a child’s primary caregiver, then the court is likely to order the removal of the other spouse in the best interests of the child. In addition, if a protective order for domestic violence is issued, or evidence of abuse is presented to the court, this situation is also likely to result in the other spouse ordered out of the home.

Get Legal Advice

The dynamics of divorce are hard to predict, but couples facing this situation are bound to encounter challenges as they move through the process. Working with an experienced divorce attorney facilitates efficiency in the divorce case and a greater likelihood of a fair outcome. Christopher L. Arrington, P.C. wants to help clients end their marriages in a reasonable and fair manner, and is available to discuss your circumstances. Contact the Danville law firm to schedule an appointment.

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