Who Gets the House? Separation and Residence

Who gets the house in separation divorceNow that I am slightly rested after a glorious victory by the Saints in the Superbowl, I’m back for another blog entry. Today, a word or two on what to do about getting someone to move out of the house.

I’ve already mentioned that separation begins when someone establishes a different residence. The concept is pretty simple, but getting to that point can be tricky. What if you both want to stay in the house?

There are not too many options to force someone out. Basically, you can 1) leave 2) convince the other person to leave 3) file an action called “divorce from bed and board” or 4) stick it out until an agreement is reached. The first two options should be pretty self evident and not need too much explanation. I’ll focus on the last two.

Divorce from Bed and Board (DBB) is, essentially, a court-ordered kind of separation. Until very recently, an action for DBB could not be used to evict someone from the marital residence. This year, however, the appelate court held that a judge could order someone out of the house in an action for DBB. It makes it a more viable option for deciding on who stays and who goes, but it is by no means guaranteed that DBB will get someone out. The circumstances by which a DBB is awarded are limited. The most common are substance abuse, adultery, cruel treatment, and indignities to a spouse that make life in the household intolerable. Bad financial management, or just being an obnoxious spouse don’t rise to the level of getting someone out using DBB. As with all litigation, the outcome is uncertain and taking something like this to Court is a gamble. It could cost plenty of money and get you nowhere because you may end up with a situation where a judge grants the DBB but doesn’t order anyone out of the house. However, for some it is the last and only option left.

Sticking it out is tough as well. No one wants to keep living with someone once they’ve decided its time to move on with his or her life and separate. However, for some that is the only option available. If you can tolerate it, stick it out until you reach an agreement on all the issues-ED, Alimony, etc. This is the scenario where you are working to get to a separation agreement and in the agreement it specifies a date for a party to move out and determines what will happen to the house. As I mentioned, not everyone has the ability to stick it out and stay in the house with the other party. What I tell my clients is do it if you can stand it. There are some situations where this is simply not advisable, however: when there is violence in the home, when substance abuse and/or mental illness create an unsafe situation, or when your own mental state is suffering so much that it becomes unhealthy for you to continue to stay in the home.

When it gets to a point where you just can’t both stay, and the other party won’t leave, then you need to decide between DBB and leaving yourself. Don’t forget, you always have the option of leaving. Getting an apartment or moving in with a friend or family member is the immediate solution for most people. So long as you and your spouse both know that there is a separation that needs to occur, you can move out.

There are a few things to avoid. Don’t just change the locks when your spouse goes to work. Don’t threaten them or push them out of the house and lock them out. Don’t disappear in the middle of the night or while the other party is at work. As long as the plan for leaving is on the table and both parties are aware that this is what has to happen, then you shouldn’t get caught up in the issue of abandonment.

Finally, and most importantly, your safety is paramount. Do not place yourself or your children in an unsafe situation. Take threats of violence and aggressive behavior seriously. Don’t stay in a home where you may become a victim of domestic violence. If there is a violent confrontation, take immediate action to protect yourself and your children. Contact the police and obtain a protective order.

If you have questions about separation, the Palmé Law Firm can help! Call 919-803-4512 or contact us here.

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