Many times we see clients who want to have possession of the marital residence to the exclusion of the other parent, otherwise barring a spouse from the home when a divorce is in process. This may make total sense, especially if children are involved in the family and the parties are openly fighting with each other. It is never good for children to continue to be the victims of the divorce or separation, and be exposed to it on a day to day basis. Of concern though, is the fact that every person should have a modicum of privacy in his or her life and that is often times impossible when two divorcing or separating parties are still sharing the same home during the divorce. There are also, sometimes, questions during a divorce of violence in the home or threats of violence in the home.
Ohio has specific criminal statutes dealing with violence or threats of violence and these statutes apply not only to married persons, but also to threats of violence or violence from other “members of the household” and thus, “un-married persons.” Obviously, assault is prohibited by law and even general threats to do bodily harm against someone are prohibited by law. On a criminal law level, there are statutes dealing generally with assault and also with threats. In any of the situations with assaults or threats, the person doing the assaulting or threatening can be arrested.
In relation to members of a household there are statutes dealing with threats of imminent, serious, physical harm, even if no harm has been done yet. In situations where people are living together or married, assaults can result in criminal charges of domestic violence. Orders for someone to stay away from a victim, in the above criminal types of situations can be issued and the victim can end up barring a spouse from the home during the period of the order, which might even last up to five years.
Ohio has statutes creating the ability to obtain Civil Protection Orders. These statutes apply specifically to members of the person’s household and would apply to two people living together unmarried or to people who are married. With the statutes, orders can be issued for up to five years, requiring that the person against whom the order is made, vacate the home, turn over all keys and garage door openers, refrain from contacting the other party (either directly or even indirectly through a third person) and surrender all weapons to the police department.
Even though Civil Protection Orders are “civil” and not “criminal” in nature the courts take applications for these orders very seriously. Obviously, if a court is going to essentially evict a person from his or her own home, the matter is serious and it should be just as obvious that if someone is being subjected to violence or threats of imminent, serious, bodily harm, that is also a serious matter.
With issuance of a Civil Protection Order, the victim is given sole and exclusive possession of the residence to the exclusion of the other person (who may be permitted to remove certain items if he or she arranges to do so and comes with a law enforcement officer).
Civil Protection Orders may also grant “custody” of children to one of the parties and, if a child has been threatened with imminent, serious, bodily harm a child can be declared to be a “protected party” with the same protections regarding “no contact” and “stay away” orders.
Temporary Orders Resulting in The Barring A Spouse From the Home
Courts differ in their requirements as to what circumstances will be sufficient for granting exclusive possession of a residence to a party. Some require past violence, or the current potential of violence and there are others which have not required that type of situation in the past. Temporary orders are orders which a party requests at the beginning of a case and can cover everything from possession of the home, to child custody, support, and payment of bills.
If you have a question concerning use and possession of a home, to the exclusion of another party, you should consult with a reputable attorney who has knowledge of what the courts in your jurisdiction would do based upon your particular fact situation.