Removing a Spouse from the Marital Home

1. Can I request that my husband be barred from the marital home during our divorce?

In most cases, a spouse can only be barred from the marital home if there is a restraining order entered against him or her. However, there are many scenarios where, although there are no acts of domestic violence committed by either spouse, it may nevertheless be dangerous for the spouses to continue living with each other.

In my experience, most courts will not bar one spouse from the marital home. In most instances the courts will order the parties to “tough it out” and continue to live with each other until their case is litigated. After the divorce is finalized, most courts will order that the martial home be sold. Alternatively, the court may order that one spouse buy out the other one’s interest in the home. Once the case is over, courts will likely order one spouse to leave the marital home within a reasonable time, usually interpreted to be from two weeks to two months.

Nonetheless, a spouse still has a legal right to file a motion requesting that a court exercise its equitable jurisdiction and order the other spouse to leave the marital home. In the case of N.B. v. T.B, 297 N.J. Super. 35 (App. Div. 1997), the court recognized that the parties in the midst of a divorce should not ordinarily reside under the same roof. However, cases that request the removal of a spouse must be decided by the matrimonial court. Therefore, a matrimonial court has the equitable power to remove a spouse from the marital home upon a proper showing. See Degenaars v. Degenaars, 186 N.J. Super. 233 (Ch. Div. 1982); Babushik v. Babushik, 157 N.J. Super. 128 (Ch. Div. 1978); S. v. A., 118 N.J. Super. 69 (Ch. Div. 1972); Roberts v. Roberts, 106 N.J. Super. 108 (Ch. Div. 1969). In summary, any family dispute accompanied by a request that one spouse be barred from the marital home must be addressed by the family court.

If a court believes that the application to bar a spouse from the marital home has merit, then the court will grant the parties a plenary hearing, known as a Roberts Hearing. However, it must be emphasized that the odds of prevailing on these types of motions are very remote. Given the strong proprietary rights afforded to a homeowner, it is fairly difficult to bar a spouse from the marital home.

 
2. What are some important cases that address motions to bar a spouse from the marital home?

A. Babushik v. Babushik, 157 N.J. Super. 128 (Ch. Div. 1978).

Here, the plaintiff-wife sought to bar defendant-husband from the marital home. The home was titled in the plaintiff’s name. There were no allegations of danger to the wife, children, or property. The court ordered the defendant to leave the marital home, reasoning that it was New Jersey’s public policy to terminate dead marriages.

B. Degenaars v. Degenaars, 186 N.J. Super. 233 (Ch. Div. 1982).

In this case, the court once again recognized that it has broad and equitable powers to enjoin a spouse from the marital home. Here, a spouse voluntarily left the marital home, and maintained a home elsewhere and wished to return to the marital home. Even though there was no definitive proof of danger of physical or emotional harm to the remaining spouse and children if the defendant returned, the court held that the spouse could be enjoined from the marital home. The court further noted that it would be in the best interests of the children if their lives were not traumatically invaded by the defendant’s desire to reside in the marital home.

C. N.B. v. T.B., 297 N.J. Super. 35 (App. Div. 1977).

This was the first case that contained the appellate court’s expression of approval for a trial court to grant a request to enjoin a spouse from the marital home where the spouses’ behavior did not necessarily rise to the level of domestic violence.

D. Roberts v. Roberts, 106 N.J. Super. 108 (Ch. Div. 1969).

Here, the plaintiff-wife sought to bar her husband from entering the marital home. The parties owned the home as tenants by the entirety. There were no minor children living in the home. The court held that it had the statutory and general jurisdiction to grant plaintiff’s requested relief. The court based its decision on the equitable maxim that equity will not suffer a wrong without a remedy.

E. S. v. A., 118 N.J. Super. 69 (Ch. Div. 1972).

The major issue here was whether a mother’s mental issues and alcoholism, combined with her unannounced absences and returns to the marital home, were so averse to the best interests of the parties’ children so as to justify a bar from the marital home. In granting the husband’s application to bar the wife from the home, the court used its equitable jurisdiction and noted that “nothing would be more protective and in the best interest of the [parties’] children than a stable home where their roots are.”