Can I Make My Spouse Move out of the House?

If it negatively impacts the children, can I force my spouse to vacate the marital residence during a divorce?

This is a frequent question all divorce lawyers are asked typically at the beginning of a divorce case. Obviously, their marital relationship has deteriorated or completely broken down for them to be considering a divorce. In legal jargon, their question pertains to obtaining an order for their spouse to vacate the marital residence  and not reenter the home without the remaining spouse’s permission. This is often referred to as an Order for Sole and Exclusive Use of the Marital Residence.

Many times one spouse or the other may agree voluntarily to move out of the home temporarily during the divorce for a multitude of reasons. One of the frequent reasons is simply to avoid continued conflict and stress. It is important to note that moving out does not cause the vacating spouse to lose or in any way diminish their property interest in the home. If there are children involved, always discuss this issue with your divorce lawyer first as that decision may impact the determination of the custody of the children. Without such an agreement or a court order, both spouses have a right to remain in the marital residence regardless of how the property is titled.

1. HAS YOUR SPOUSE VACATED THE MARITAL RESIDENCE FOR MORE THAN 30 CONSECUTIVE DAYS?

If so, in many Ohio counties, including Montgomery County, simply including a provision in your basic temporary restraining order may be all that is needed to solve that issue! Montgomery County Domestic Relations Court Local Rule 4.17 (7) states “Return to Premises: Plaintiff/defendant who has been voluntarily absent from the marital premises for the past thirty (30) consecutive days, is hereby restrained from re-entering the marital premises.” Voila, the problem is solved (at least on paper and by a court Order)!

2. MY SPOUSE WON’T MOVE OUT. HOW ELSE CAN I GET AN ORDER FOR HIM/HER TO LEAVE?

1. Criminal Remedies:

   In Ohio there are various criminal statutes dealing with assault and threats of violence. If that is your situation, the first step is to file a police report. In addition, a Criminal Temporary Protection Order may be able to be obtained which could include an Order for the offender to move out of the house while the criminal matter is pending. The implications of criminally charging a spouse should not be taken lightly. Nonetheless, one must take all steps to protect him/herself, as well as the children in the home.

2. Civil Protection Order Remedy

   In Ohio there are specific statutes which are designed to protect individuals from violence or threats of violence. These statues apply to unmarried people too depending on certain conditions. These civil protection orders (CPO’s) can also cover members of the person’s household such as children, again depending upon the facts. These Orders can be issued to last up to 5 years. In addition, they can also include language requiring the respondent to vacate the home, surrender all keys and garage door openers, ordering no contacting the other party directly or through a third party, and also surrendering all weapons to the police. They can also grant custody of the children to a party if the children have been threatened with serious imminent harm.

   Even though these protection orders are civil in nature, Court’s require clear evidence and testimony presented under oath with possible perjury consequences. Never even consider making false domestic violence allegations. Click here to read an article published about this on the Ohio Family Law by Judianne Cochran way back in 2010.

3. Motion for Sole and Exclusive Use of the Marital Residence:

   In Montgomery County, Local Rule 4.16 states:

1. Contents of Motion. A motion to vacate premises shall state with specificity the reasons for the motion and shall be supported by an affidavit. The motion may be set for a hearing.
2. When Granted. A motion to vacate premises may be granted after a hearing if the movant establishes that the opposing party:

1. Attempted to cause or recklessly caused bodily injury by acts of physical violence, or;

Placed a party, by threat of force, in fear of imminent serious physical harm, or;

2. Committed any act with respect to a child that would result in the child being an abused child as defined in R.C. 2151.031, or;
3. Engaged in conduct or creates an environment which causes or is likely to cause severe emotional and/or mental stress to the spouse and/or minor children of the parties.

While it is often true that couples’ continuing to reside together during a divorce is difficult emotionally, it is common for this to occur. It is only in extreme cases where the court will order one party to vacate the marital residence. So, understand that this factual burden is high and typically considered a harsh remedy. Such proof can consist of evidence of violence, drug abuse, or alcohol abuse and emotional abuse. The courts will often focus on how the parties continuing to reside together is negatively impacting the children.

It is very important to discuss these “fact sensitive” issues with an experienced divorce lawyer who knows the Court and the judges position on the burden of proof necessary to be granted exclusive use of the marital residence.

We are Experienced, Trusted and Professional Dayton Divorce Lawyers

Do you need help with Ohio divorce, dissolution, or possible custody case? We can assist you immediately. To learn more, please go to our website at www.hcmmlaw.com or call us at937 293-2141. We can schedule an in-person conference or one by phone or Zoom.

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