Separation and Divorce

The Family Home When Spouses Separate


Spouses often wonder what they are allowed when they separate. For example, can one spouse make decisions alone about the family home before the divorce papers are filed in court?

Who Can Stay in the Home?

Both spouses are allowed to live in the family home while they are separated, no matter who owns it. In theory, one spouse can’t force the other out.

A spouse who decides to leave can return whenever he or she wants to.

It’s better if the spouses can agree on who will stay in the home if they decide to separate. The agreement can include who will have exclusive use of the home. The spouses can present the agreement to the court with the divorce papers. If the spouses can’t agree, the court will decide.

Changing the Locks After Separation

Since both spouses have the right to stay in the home during the separation, neither one is usually allowed to change the locks without telling the other. But one spouse might have a good reason to change the locks, even before the divorce papers have been prepared.

A legal professional can help determine whether it is an exceptional situation where the locks can be changed.

Exclusive Right to Live in the Home

How does one spouse get the right to live in the home and keep the other spouse out? The spouse would have to file an urgent request with a judge. This request is connected to the application for divorce she either filed or received. The request to live in the home and keep the other spouse out is officially called a request for a “Safeguard Order for Exclusive Use of the Family Residence.”

In other words, the spouse asks the judge to stay in the home and to temporarily take this right away from the other spouse, even if the other spouse owns the home. After the judge makes a decision, the spouse ordered to stay away does not have the right to live in the home or enter it without the other spouse’s permission.

It can take a few days or even a few weeks to get this judgment. The judge considers these factors when deciding who stays in the home and who must leave:

  • inconveniences caused to each spouse and to their children if they have to leave
  • the interests of the children
  • whether the spouse can find another place to live

The exclusive right to live in the home is closely tied to the custody of the children. The spouse who has custody has a much better chance of staying in the home. It is not usually in the interests of the children, who have already been upset by their parents’ separation, to have to move to a new place.

Options of Spouse Who Has Been Forced Out

A spouse who has been forced out of the family home by a spouse who did not get an order from a judge can also ask for a “Safeguard Order for Exclusive Use of the Family Residence.”

A spouse who has been forced out without authorization can ask a judge to be allowed back in and force the other spouse to leave.

The spouse who has been forced out must act quickly. Usually, the more time passes, the less likely the judge will let that spouse return to the home.

Spouses Who Co-Own the Home

When a spouse forced out co-owns the home, that spouse can ask for financial compensation for not being allowed to use the home. This is especially true if this spouse continues to pay a share of the expenses (e.g., mortgage, electricity) and has to pay to live somewhere else.