Although leaving the marital residence, in theory, does not impact upon the ultimate outcome of a divorce, as a practical matter, it is rarely advisable to leave the marital home, particularly if you wish to pursue custody, if there are items of personal property and furnishings that you are leaving behind which are subject to equitable distribution, and/or if you wish retain the marital home after divorce.
Unfortunately, the person who leaves the marital home often finds him/herself in a disadvantaged position. The spouse who remains in the marital home is at an advantage because that spouse often remains physically with the children (it is often said the children go with the house) and has control over the personal property and furnishings. This could result in property being destroyed, transferred to third parties or, in some cases, even sold by the spouse remaining in the home without the other spouse’s consent or knowledge. Furthermore, if it is your desire to continue contact with your children and/or pursue custody or substantial parenting time, i.e. joint physical custody, you are in a better position if you remain in the home, as the Court will look to your time with the children as a factor in determining a future arrangement.
Generally speaking, there are only limited ways in which one can make a spouse leave the marital home. In Massachusetts, under the Abuse Prevention Statute M.G.L. 209A, following the issuance of a temporary Restraining Order based on a viable complaint, a hearing is held. If there is a finding that an act of domestic violence has been committed, the offending spouse will be restrained from the marital home.
Absent a Domestic Violence Retraining Order, removal of a spouse from the marital home is extremely difficult. Under M.G.L. c. 208, § 34B, either spouse may file a Motion to Vacate the Marital Home. The spouse is required to demonstrate a substantial likelihood of immediate danger to his or her health, safety or welfare or to that of the minor children.
The opposing party shall be given at least three days’ notice of such a hearing and may appear and be heard either in person or by his/her attorney.
If the court finds the moving party has met the standard, the court may order the husband or wife to vacate the martial home for a period of time not exceeding 90 days, and upon further motion for additional certain period of time, as the court deems necessary.
Contact the Law Offices of Renee Lazar to schedule a free one hour consultation to discuss your particular needs.