Judges rarely force a spouse out of the marital home during divorce—unless there's abuse or compelling reasons.
Many divorcing spouses separate by one of them moving out voluntarily, without any need for a court's involvement. But when one spouse refuses to leave the marital home and the other wants them gone, only a judge can force the issue.
Getting a judge to order your spouse out isn't easy. Judges are generally reluctant to grant this kind of relief and often expect couples to figure it out themselves or tough it out until the divorce is settled and they can either sell the home and split the proceeds or arrange a buyout. A judge will typically order a spouse to leave only in limited circumstances, most often involving domestic violence.
General Rules Regarding the Marital Home During Divorce
Generally, courts aren’t inclined to bar one spouse from the marital home while a divorce is pending. If the couple can't agree on living arrangements, judges will often expect both spouses to continue living under the same roof until the case is fully resolved.
When spouses can't agree on what to do with the home itself, courts frequently order it sold, with the proceeds divided between the spouses based on state laws on dividing property. Or a judge may order one spouse to buy the other's interest in the home. When that happens, the spouse who's selling their share is usually given a reasonable amount of time to move out after the buyout.
Can I Ask a Judge to Remove My Spouse From the Marital Home During Our Divorce?
Despite the general reluctance to remove either spouse from the home, a spouse can file a motion asking the family court to use its authority to make fair and equitable orders, including an order that the other spouse leave. But the spouse requesting the order must show that there's good cause for the removal.
If a judge finds the request has merit, they may hold a full hearing where both sides can present evidence and testimony before a decision is made. Because homeowners have strong legal rights to their property, courts don't grant these requests lightly.
In most cases, a spouse can be removed only when there’s a history of domestic violence. The abused spouse typically must get a domestic violence protective order, which bars the other spouse from contacting them and will likely also include a move-out order.
Even without a history of physical abuse, a judge may still grant one spouse’s request to bar the other from the home under compelling circumstances, including:
- when continuing to live together would be dangerous, or emotionally or mentally damaging, to one or both spouses
- when it wouldn't be in the children's best interests for the spouses to continue to live together, and
- when it would be exceedingly unreasonable or unfair to deny the request.
What Factors Do Courts Consider When Deciding Whether to Remove a Spouse?
Judges weigh a range of factors in these disputes that vary from state to state. The outcome ultimately turns on the individual facts of each case. A pattern of behavior that falls short of the legal definition of domestic violence can still be enough to justify removing a spouse, if a judge is convinced the situation is harmful to the other spouse or the children.
Timing also matters. If a spouse voluntarily moves out and sets up a separate residence, a judge may be reluctant to let that spouse return later. Once a new routine is established, judges are often hesitant to disrupt it, especially when kids are involved. This is worth keeping in mind when deciding whether to move out of the family home during a divorce. Leaving might be the best option, but know it will likely shape the court's view of what arrangement is best going forward.
A spouse's mental health or substance use issues can also be a factor, especially when children are involved and removing a parent struggling with these issues is necessary to protect the children's best interests and provide a more stable environment.
