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Getting a Spouse Out of the House in Divorce


When couples make the decision to get divorced, one of the first things that often must be negotiated is which one will leave the family home. For understandable reasons, the primary caretaker of the couple’s children will typically end up staying, but without a court order or some other legal mechanism to sever the other spouse’s right to the home, the spouse leaving is doing so voluntarily. Until this person formally relinquishes or loses the right to occupy and own the home, they are not required to leave, which has the potential to lead to conflict if neither spouse will vacate. Final resolution of who has rights to the home may not come until the property settlement in the divorce decree, and as an example of how sensitive this issue can be, an Atlanta woman who took the loss of her house in a divorce very badly decided to burn the home down so her ex-husband would lose it as well. Settling who will have access and use of a home during a pending divorce is an issue all divorcing couples face, and a discussion of the options a spouse may have to force the other party out, will follow below.

Rights to Remain

Generally, couples in divorce form their own agreement on the living arrangements once the wheels are put in motion. Depending upon the level of acrimony and division of childcare duties, a written plan outlining when/if a spouse choosing to leave the home will have access to the residence is the best way to handle this tricky issue. Courts may be more willing to enforce the terms of these agreements if the terms are reasonable, especially the amount of time a spouse has to find another place, and they reduce the amount of conflict a child may experience. However, looking purely at whether a spouse has a legal right to stay in the home will usually come down to the type of interest he/she has in the property, i.e., is the property owned or leased. If the property is owned, the party listed on the mortgage does hold the authority to determine who gets to stay or leave, but enforcing this right is not always so easy. Lease situations give both spouses the right to remain until the contract expires, and some couples do find themselves, either through necessity or concerns about losing ground in the divorce case, staying together until the marriage is formally ended.

A few potential issues a spouse contemplating leaving the family home should consider start with relinquishing possession of personal property to the other spouse, which may never be recovered. Additionally, when children are involved, leaving the home inherently requires giving up some measure of parental rights, and could damage later efforts to receive equivalent rights post-divorce.

Forcing a Spouse to Leave

If there are true issues, beyond a couple’s inability to agree on who should leave the home, Florida law permits a divorcing spouse to petition for temporary rights to the exclusive use and possession of the home. This right may become permanent once the divorce is finalized, and the circumstances will dictate when a court will consider this type of request. Typically, while the divorce is pending, a court will not order a person out of a home he/she has rights to live without a compelling reason, such as domestic violence, drug abuse, or if the home is modified for a specific purpose (accommodating a disability). Requesting rights to the marital home post-divorce may be granted if best for the welfare of the child.

Contact an Orlando Divorce Lawyer

Figuring out living arrangements during and after divorce is just one of many issues you will need to decide. The legal implications of all divorce-related decisions are far-reaching, and before any action is taken, an experienced divorce attorney should weigh-in on the probable consequences. The attorneys at the Donna Hung Law Group have years of experience helping Orlando couples navigate divorce, and can offer the dedication and creative solutions you need to get the best possible results. Contact us today at (407) 999-0099 for a consultation.