Can I leave the marital home? Can I make my spouse leave the marital home?

You can't guarantee what your spouse will do once you leave, and that includes decisions made about assets you left behind in your home.

By Linda Mainenti-Walsh
May 25, 2006

Although leaving the marital residence, in theory, does not impact upon the ultimate outcome of a divorce, as a practical matter, it is rarely advisable to leave the marital home, particularly if you wish to pursue custody, if there are items of personal property and furnishings that you are leaving behind which are subject to equitable distribution, and/or if you wish retain the marital home after divorce.

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Unfortunately, the person who leaves the marital home often finds him/herself in a disadvantaged position. The spouse who remains in the marital home is at an advantage because that spouse often remains physically with the children (it is often said the children go with the house) and has control over the personal property and furnishings. This could result in property being destroyed, transferred to third parties or, in some cases, even sold by the spouse remaining in the home without the other spouse’s consent or knowledge. Furthermore, if it is your desire to continue contact with your children and/or pursue custody or substantial parenting time, i.e. joint physical custody, you are in a better position if you remain in the home, as the Court will look to your time with the children as a factor in determining a future arrangement.

Generally speaking, there are only limited ways in which one can make a spouse leave the marital home. With the advent of the Internet and other information resources, spouses have become savvy as to the laws that protect them and their rights to remain in the marital home. As a result, often times a spouse will dig his/her heels in and refuse to leave. In New Jersey, under the Prevention of Domestic Violence Act (NJSA 2C:25-1 et. seq.), following the issuance of a temporary Restraining Order based on a viable complaint, a hearing is held. If there is a finding that an act of Domestic Violence has been committed, the offending spouse will be restrained from the marital home.

Absent a Domestic Violence Retraining Order, removal of a spouse from the marital home is extremely difficult. One may be able to apply to a Court under the general equity power of the Court for an Order granting one spouse exclusive occupancy of the home, and preclude the other from residing in the home if it is demonstrated that there is certain and immediate necessity to protect the safety of the other spouse or property or where there is harm or threat of harm evidencing a danger of future injury or damage if the other spouse is not excluded from the home.  Until there is such a showing and resultant Court Order obtained from the Family Division Court or under the prevention of Domestic Violence Act, both parties are equally entitled to remain in the marital home until the Judgment of Divorce is entered.


Linda Mainenti-Walsh is of counsel with the Denville, NJ firm of Einhorn, Harris, Ascher, Barbarito & Frost, P.C. She practices in the area of family law, including matrimonial, custody, domestic violence, and non-dissolution matters. She can be reached at (973) 627-7300. View her firm's Divorce Magazine profile.

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May 25, 2006
Categories:  FAQs

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