We are divorcing, so am I able to make my spouse move out of our home?

Matheu D. Nunn, Esq., a family lawyer in Denville, answers:

An issue that frequently arises between parties in divorce litigation is “possession” of the marital residence — not after the divorce, but “possession” during the litigation process. The common question asked by litigants is: “Can we force him/her out of the house?” That question does not have a simple answer.

In New Jersey, there are three avenues to obtain exclusive possession of a marital residence during the pendency of divorce litigation.

1. The first avenue is to reach an Agreement with a spouse, which is memorialized in a Consent Order that is entered in the divorce case. The Consent Order will serve to reduce the Agreement to an Order that can be enforced by the divorce judge assigned to the case.
2. The second approach requires litigation vis-à-vis a formal application with the divorce judge to have a spouse restrained from the marital residence. Depending on the circumstances, such an application would come in either an Order to Show Cause (an emergency) or a Motion (non-emergency). For example, if one spouse acts in a manner that hurts the children of the marriage (physically, emotionally, or both), the non-offending spouse may succeed in precluding the other spouse from occupying the marital residence (regardless of the manner in which the house is titled). This would require:
   • an adequate showing that continued co-habitation between the spouses is inimical to the best interests of the children;
   • that one spouse is causing the strife and, thus, harm to the children; and
   • that removal of one spouse will “cure” the problem.
3. Third, the Prevention of Domestic Violence Act (PVDA) may be a means to obtain exclusive possession of the marital residence. However, the PVDA should not be used in attempt to gain an “upper- hand” over a spouse or because co-habitation is less than ideal; the PVDA should only be used to prevent domestic violence by one spouse against another. If a spouse is subjected to abuse and can demonstrate that a Final Restraining Order (FRO) is needed to prevent further abuse, a Judge will enter an FRO that contains restraints on contact between the spouses. Implicit and often explicit in the FRO is that the spouses cannot reside together and, in the vast majority of cases, the “victim” spouse is awarded exclusive possession of the marital residence.