Divorce can be an emotionally draining and complex process, especially when it comes to dividing assets, determining custody arrangements, and deciding where each spouse will live during and after the divorce proceedings. One of the most contentious issues that can arise in a divorce is when one spouse wants the other spouse to move out of the marital home. In Massachusetts, forcing a spouse to move out of the marital home during a divorce is not an easy task, and often requires a court order. There are financial considerations as well, such as whether or not you can afford to live on your own. There are several factors that a court will consider before making such a decision.
First and foremost, it’s important to understand that Massachusetts is an equitable distribution state, which means that all marital property is divided fairly, but not necessarily equally, between the spouses. This includes the marital home, which is usually the largest asset in a divorce. Before a court will order one spouse to move out of the marital home, it will first have to determine who owns the home and whether it’s considered marital property. If the home is owned jointly by both spouses, then it’s considered marital property, and both spouses have a legal right to live in the home during the divorce proceedings.
However, there are some situations where one spouse may have a stronger claim to the marital home than the other. For example, if one spouse owned the home before the marriage and the other spouse never contributed to the mortgage payments or upkeep of the home, then the home may be considered separate property and the owning spouse may have a stronger claim to live in the home during the divorce. Additionally, if one spouse has been the primary caregiver for any minor children in the home, then the court may be more likely to allow that spouse to stay in the home with the children.
Another factor that the court will consider when deciding whether to force a spouse to move out of the marital home during a divorce is whether there has been any domestic violence or abuse in the relationship. If one spouse has been abusive or threatening towards the other spouse or any children in the home, then the court may order that spouse to move out of the home for the safety of the other spouse and children. In these situations, the court may also issue a restraining order to prevent the abusive spouse from contacting or coming near the other spouse or children.
However, if there has not been any domestic violence or abuse in the relationship, then the court may be more hesitant to force one spouse to move out of the marital home during a divorce. This is especially true if there are minor children involved, as the court will want to ensure that the children have stability and continuity in their living arrangements during the divorce proceedings. In these situations, the court may order both spouses to continue living in the marital home until the divorce is finalized and a custody arrangement has been determined.
If the court does order one spouse to move out of the marital home during a divorce, then that spouse will usually be responsible for finding their own living arrangements and covering their own living expenses.
The court may also order the owning spouse to pay for a portion of the moving and living expenses of the other spouse. Making sure you know your spouse’s financial information is important to make the argument that they should be responsible for helping to pay the bills. This information will come out during the discovery period.
In a Massachusetts divorce, there are several legal options available to a spouse who wants their partner to move out of the marital home during a divorce.
1. By Agreement
It could be that you and your spouse agree who will move out of the family home. It doesn’t have to be a written agreement. This is the easiest method, but it comes with some risk. It’s risky for the person moving out, especially if you have children together. If you’re moving out of the family residence you’ll want to make sure the new place is suitable for your children. Otherwise, it could affect your visitation agreement and that can give your spouse the upper hand when later negotiating child custody and child support.
2. Restraining Order/Harassment Prevention Order
You don’t have to be going through a divorce to get a protective order. You can apply for them anytime. There are two main types:
a. Restraining Order
Where you and the other person have been involved in a substantial dating relationship and you are in fear for your physical safety. Oftentimes, there has been abusive behavior involved; and,
b.Harassment Prevention Order
In this case there does not need to be a relationship between the parties. You must show that there have been at least 3 separate incidents of harassing behavior.
In either case, you can ask the court to order the other person to leave the home and stay away from you.
3. Temporary Orders
Once a divorce case is filed, either party can ask for temporary orders from the family court. One of the issues that can be addressed is letting one person have exclusive use of the marital home. In addition, you can ask for spousal support and to have your spouse make the mortgage payments. These orders will be in place throughout your divorce proceedings.
4. Order to Vacate
This is similar to a restraining order. In order for you to get such an order, you must show that the health, safety or welfare of you or any minor children is at risk if your spouse remains in the home. The order is for 90 days and can be extended upon a further hearing. You must file a motion and generally give your spouse 3 days’ notice. However, if there is an immediate threat, you can ask for the order to issue right away. There will then be a hearing on the issue within 5 days. You can get an order even if your spouse is not currently residing with you or if you have left the home out of fear for your safety.
I have been practicing law in Massachusetts since 1995. My focus is in the areas of criminal and family law. I’m dedicated to providing high-quality legal help at an affordable price. I practice throughout Massachusetts. I earned my MBA from the University of Rhode Island in 2023. I earned my JD from New England School of Law in 1994. I earned my BA from Rhode Island College in 1990.