New Jersey Divorce: Can You Make Your Spouse Leave the Family Home?

Couples who have made the difficult decision to divorce are usually anxious to sort out their future living arrangements. At this early stage, clients frequently ask their attorney whether or not they can make their spouse move out of the family home before the divorce is final. The answer, as much as you may not want to hear it, is usually no. In a typical New Jersey divorce case, the court will not order either spouse to leave the marital home.

There are, however, a few notable exceptions to this general rule:

• Do you and your spouse have a history of domestic violence or patterns of abusive behavior? New Jersey’s Prevention of Domestic Violence Act allows a judge to bar an abusive spouse from the marital home as part of a restraining order. If there is no behavior that amounts to domestic violence, but circumstances exist that make it dangerous, extremely unfair, or against the best interests of the children for your spouse to continue living in the home, you can file a motion in family court asking the judge to order your spouse to move out. A family court judge has the power to order this kind of equitable relief, but be forewarned that it will require a full hearing and clear evidence. Unless the circumstances are extreme, the chances of success are generally low.

• What if you own the home separately? Although it may seem unfair, even if the marital home is your separate property, you cannot simply order your spouse to move out. Under normal circumstances, both spouses have a right to continue occupying the home that has been their principal residence during the marriage while the divorce is pending. 

• What if you are unable to pay the mortgage and need to sell the marital home to make ends meet? If your spouse does not agree that putting the home on the market is necessary, you will have to ask the court for permission to sell it “pendente lite” (during the divorce). Even if the home is your separate property, you will need compelling financial reasons. If you own the home together, it may be even more difficult to obtain permission.

So what options does this leave? If you really cannot tolerate living together until the divorce has been sorted out, you can move out yourself, but there are some important considerations to keep in mind. The most common concern relates to custody of minor children. A spouse who stays in the home with the children tends to have a strategic advantage in a custody dispute. If you wish to move out and take the children with you, will need an agreement with your spouse or a temporary order for physical custody from the court, even if you are the children’s primary caretaker. As far as ultimate possession of the house itself is concerned, if both of you have an ownership interest in the home and you do not need to sell it to balance out the distribution of marital property in the final divorce judgment, a judge may be somewhat more inclined to award possession of the home to a spouse who has continued to live there.

Once your divorce is final, the court may order you to sell the marital home and divide the proceeds, or may award the home to one or the other of you – possibly along with an order for a “buy-out” arrangement to balance the financial interests in the home. Courts also sometimes award one spouse the right to possession for a limited time before the house is sold. For example, a custodial parent might receive the temporary right to live in the house until the children are older.

What is the best solution? It is, of course, always advisable to consult your attorney about your particular situation first, but, a good solution is for couples to work out arrangements between themselves. In New Jersey, couples who have difficulty agreeing on what to do with a family home will usually be required to participate in settlement efforts, possibly including economic mediation, before going to court. Generally speaking, the sooner that you and your spouse are able to resolve the question of who is going to live where, the sooner you can start to put this stressful issue behind you.

For more information about divorce and the family home, check out these additional resources:

Abandonment of the Marital Home

Divorce: Do You Really Want to Keep the House?

What You Need to Know Before Filing for Divorce