Removing a Spouse from the Marital Home

Updated by , Attorney · UC Law San Francisco
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Post-separation living arrangements are a major concern for most divorcing couples, and many spouses want to know whether they can force the other spouse to leave the marital home. This article provides an overview of how New Jersey courts typically handle this issue.

General Rules Regarding the Marital Home During Divorce

Generally, courts aren't inclined to bar one spouse from the marital home. In most instances, courts will order the parties to "tough it out" and continue to live with each other until their case is fully litigated (resolved in court).

In fact, when there are disputes over the marital home in a divorce, many courts will order that the home be sold and any profits divided between the spouses; the precise division may also be decided by the court.

Alternatively, the court may order that one spouse buy out the other one's interest in the home. If so, courts will likely order the selling spouse to leave the marital home within a reasonable time after the buyout.

Can I Ask a Court to Remove my Spouse From the Marital Home During our Divorce?

Despite the general rule the courts aren't likely to remove either spouse from the home, spouses may file a motion asking a family court to exercise its "equitable jurisdiction" (authority to make fair and just orders) and order the other spouse to leave. The spouse requesting the order will have to convince a court that there is good cause for removing the other spouse.

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" (full) hearing, with evidence and live testimony, known as a "Roberts Hearing." However, it must be emphasized that given the strong proprietary rights afforded to homeowners, it is fairly difficult to bar a spouse from the marital home.

As stated above, in most cases, a spouse can only be removed when there's a history of domestic violence. The abused spouse must obtain a restraining order that prohibits the abuser from any further contact. The abusive spouse will be banned from the marital home if that's where the abused spouse resides.

However, where there's no history of physical abuse, a court may grant one spouse's request to bar the other from the home under compelling circumstances, including:

  • where it's dangerous, or emotionally or mentally damaging for the spouses to live together
  • where it's not in the best interest of the children for the spouses to live together, and
  • where it's exceedingly unreasonable or unfair to deny the spouse's request that the other be removed from the home .

See the following section for some specific examples of cases where New Jersey courts removed a spouse from the marital home.

What are Some Important Cases that Address Removing a Spouse from the Marital Home?

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

This was the first case that contained the appellate court's approval of a family court's decision to bar a spouse from the marital home, even though the spouse's behavior did not necessarily rise to the level of domestic violence.

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

In this case, a spouse (the defendant) voluntarily left, maintained a residence elsewhere, and later wished to return to the marital home. Although there was no proof of potential physical harm to the remaining spouse or the children, the court prohibited the spouse from returning, because it would be in the best interests of the children if their lives were not traumatically invaded by the defendant's desire to return to the home.

The moral of this story is that it might not be a good idea to leave home too early in a divorce when there is no history of abuse. Once you've set up a residence somewhere else, you've created a new normal for the family. If the new normal seems to be working, a court isn't likely to disturb the status quo, especially when children are involved.

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

The issue here was whether a mother's mental issues and alcoholism, combined with her unannounced absences and returns, justified barring her from the marital home. The court removed her because it believed that doing so would protect the best interests of the children by creating a more stable home environment.

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