My spouse says I have to move out now. Who decides who gets to live in the house while the divorce is pending?

If you and your spouse cannot reach an agreement regarding which of you will leave the residence during the divorce, the judge or family court commissioner will decide whether one of you should be granted exclusive possession of the home until the case is concluded. In some cases, judges have been known to refuse to order either party out of the house until the divorce is concluded or may order a nesting arrangement, where each party is designated exclusive use of the residence on specific days or weeks.

Abusive behavior by one party is one basis for seeking temporary possession of the home while the abusive spouse is ordered to vacate. If there are minor children, the party guilty of abuse will almost always be ordered to vacate the residence. Other factors the judge may consider in determining allocation of the residence on a temporary basis include the following:

  • Whether one party owned the home prior to the marriage
  • After provisions are made for payment of temporary support, who can afford to remain in the home or obtain other housing?
  • Who is most likely to be awarded the home as part of the final divorce?
  • What options are available to each party for other temporary housing, including other homes or family members who live in the area?
  • Special needs that would make a move unduly burdensome to one party, such as a health condition
  • Self-employment from home, which could not be readily moved, such as a child-care business

If staying in the home is important to you or if you or the child is a victim of abuse, talk to your attorney so that a strong case is presented on your behalf at the temporary hearing or temporary restraining order.