Neither party is required to leave the marital residence during the divorce unless a court orders one party to leave. If you and your spouse cannot reach an agreement regarding which of you will leave the residence during the divorce, you may seek a temporary order for exclusive possession of the home until the case is concluded.

The judge will grant your temporary order for exclusive possession of the home only under certain conditions. You must be able to show that physical or emotional harm may result. Abusive behavior is one basis for seeking temporary possession of the home. In addition, talk to your attorney about other factors that may be relevant.

Other factors that may be important in determining who stays in the home include:

  • Whether one of you owned the home prior to the marriage.
  • After provisions are made for payment of temporary support, who can afford to remain in the home or obtain other housing.
  • Who is most likely to be awarded the home in the divorce.
  • Options available to each of you for other temporary housing, including other homes or family members who live in the area.
  • Special needs that would make a move unduly burdensome, such as a health condition.
  • Self-employment from home, which could not be readily moved, such as a child-care business.

Keep in mind that, absent an order of protection that may force one party out of the house, if neither party wishes to leave the marital residence both parties may end up residing in the home until the divorce is finalized.