"May I leave the marital home? Can I make my spouse leave the marital home?"
You are free to leave the home, but you should speak with your attorney before making this or any other major change in your circumstances. In some situations, physical separation is advisable. However, in many cases, leaving the home may have serious negative consequences to you, particularly if you are seeking custody of the children and they remain with your spouse in the marital home. Your departure from the home may also create a financial burden for you and your spouse.
The court will rarely compel either party to leave the marital home until the divorce is final, except in the event of domestic violence. Only in unique circumstances would a party be compelled to leave the home in the absence of domestic violence. If you are the victim of physical abuse or verbal harassment, you should call the police for protection. You may get an emergent order from either a Municipal or Family Court judge to exclude your spouse immediately from the marital home. A hearing is supposed to be held within ten days to determine whether there is enough evidence to keep your spouse from returning to the home on a permanent basis. If such an order is granted, your spouse will not be permitted to return to the home except to retrieve personal belongings, and then, only with a police escort.
David Wildstein, Esq. has been practicing matrimonial law for more than 30 years. He heads the 12-member family-law department of Wilentz Goldman Spitzer P.A. in Woodbridge, NJ and New York City. He has been listed in Best Lawyers in America.