One of the most frequently asked questions I am asked by a client who is getting divorced is whether his or her spouse can be forced to move out of the residence they are living in together. At face value it is a fair and logical question, it seeming to be simply common sense that in all but a few instances where the parties are able to peacefully coexist, living together during a divorce is likely to be stressful, acrimonious, and uncomfortable.
While virtually every matrimonial lawyer and every judge who presides over divorce cases will agree that the ideal is indeed that the divorcing parties do not reside together, the fact of the matter is that it is not automatic that one of the parties has to move out while the divorce is ongoing. Nor, although the courts have the authority during an action for divorce to order what is known as an award of “exclusive use and occupancy” of the marital residence to one of the parties “as in the court’s discretion justice requires having regard to the circumstances of the case and of the respective parties,” is such authority liberally exercised.
A respected New York State trial judge has said that deciding to remove a spouse from his or her house is one of the most contentious decisions he may need to make and that even after reviewing precedents he is still not always sure of when the circumstances of a specific case are such that he will grant or deny exclusive use and occupancy to one of the spouses.
To be sure, as with most dilemmas, there are black and white situations. Where there is indisputable proof of serious physical domestic violence by one spouse against the other (or a child of the parties), a motion for exclusive use and occupancy will be granted. On the other end of the spectrum, allegations that the spouses are adversarial, uncivil, less than cordial to each other, and what one court described as “petty harassments such as the hostility and contempt…that are routinely part and parcel of an action for divorce,” are not likely to result in an order requiring one spouse to vacate the parties’ residence.
In fact, it is recognized that there is a judicial hesitancy to deprive one spouse of equal access to a martial residence where, as in virtually every case, what is presented to the court in the form of sworn affidavits is a judicial “he said, she said.” One case has held that violence or abusive conduct, standing alone, does not mandate granting of a motion seeking exclusive use and occupancy, and the court must consider many other circumstances such as the financial circumstances of the parties, whether one spouse or the other has available alternative residences, whether one spouse or the other has a particular need to reside in the marital residence, the impact on the parties’ children if there are any, the risk of escalating violence, and the nature and extent of the marital discord.
So when you ask your attorney, “Do we have to live together while we are getting divorced?”, be prepared to provide him or her with specific, detailed factual allegations as to matters such as:
• instances of violence or abuse against you and/or your children,
• police intervention,
• injuries to yourself and/or your children (which need not necessarily be physical; proof, such as from a treating mental health professional, of emotional and psychological trauma, can be grounds for granting an order of exclusive use and occupancy),
• your spouse has an alternative residence available, which in many cases will cause a court to relax somewhat the standards otherwise required to be met to obtain an order of exclusive use and occupancy.