Separation & Family Law
No one expects to get a divorce when they fall in love and get married.
The reality is that most marriages end in divorce. Before you throw in the towel, you should consider engaging in marriage counseling to see if you can work through the problems together, with the help of a family law lawyer who is specially trained to get spouses back on track. If you are the victim of domestic violence, you should protect yourself and seek help from family, friends, religious advisors, law enforcement or your local domestic violence shelter. If you believe that the marriage is over, you should seek advice from a qualified family law attorney before you decide whether to move out of the marital home and before you talk to your spouse about separating. Avoid engaging in extramarital relations until you are separated. Position yourself financially so you can survive on your own for a few months without help from your spouse. There are financial consequences when you separate, so be thoughtful as you plan your future without your spouse. If you are a parent, consider how to make the transition as easy on the children as you can. Consider finding a counselor for yourself and your children. Assume you are being recorded and followed by a private investigator and conduct yourself accordingly. Never say or write anything (including text messages, emails, posts on social media) that you don’t want a judge to hear or read.
Who Should Move Out?
It is very difficult to force the other person to move out a shared home. There are three legal options to try to force someone out of the residence, only one of which is inexpensive and quick. First, for married or unmarried couples, if there are serious threats of physical violence or a physical assault, a cohabitant can be ousted from the house against their wishes through use of the domestic violence litigation process. Think carefully about this option, because there can be serious and sometimes unexpected consequences when a domestic violence order is entered (such as loss of the right to own or use a gun, employment consequences, and injury to reputation). Second, for married couples only, a lawsuit for divorce from bed and board alleging serious marital fault might work (such as indignities rendering your life intolerable, cruel and barbarous treatment, excessive alcohol or drug use), but this is an expensive process and it may take a couple of months or more to get a court date. Finally, for married or unmarried couples, you can file a lawsuit for custody and child support prior to separation and seek sequestration of the residence as a form of child support. Again, this is expensive and may take a couple of months or more to get a court date.
The only practical way to get the other person to move out of a shared residence may be through negotiation. You may induce them to move out by giving them funds to secure another place to live. If there are children, you should consider who is likely to be the primary caretaker and whether you want the children to continue to live in “their home.” Before you fight for the right to stay in the home, you should consider whether you can afford to stay in the residence long term. If you really want to stay in the house for sound financial reasons, then you should try to persuade the other person to move out. If you don’t really want the house or you can’t afford it long-term, it may be best for you to move out. Another alternative is to remain living together until the residence can be sold or the lease expires.