When marriages fail, the question of who gets to remain in the marital home can become a contentious issue. Sometimes one spouse will move out of the home and later decide to move back in. Sometimes a spouse will go away for a trip, or even go to work for the day, and return home to find the locks changed.
These situations raise the important questions of when one spouse may permissibly lock the other out of the marital home, or may change the locks to prevent a spouse who has moved out from returning.
Whenever possible, separation should be by mutual agreement. Situations in which a spouse is unexpectedly locked out of a home may quickly escalate to the point that the police are summoned by neighbors, and may even turn into domestic violence cases.
As a general rule, the answer is "no": Unless you have a court order excluding your spouse from the home, although you can change the locks on the marital home, you cannot prevent your ex- from returning to the home, even if that means breaking into the home, or even changing the locks again to lock you out.
In a divorce case, it's not uncommon for a spouse to move out of the marital home, perhaps to move in with a new love interest, but then to consult a divorce lawyer and learn that by moving out they've given the other spouse a potential advantage in a child custody case, or perhaps a claim for temporary spousal support to support the home while the divorce is pending. The spouse then moves back into the home, to the great consternation of the spouse who had just been abandoned.
Even if you're the sole owner on the deed to your home, or the sole tenant on the lease for your home or apartment, once your spouse returns you're likely to find that there's little or nothing that you can do to prevent your spouse from moving back in.
If your spouse has not yet moved out of the marital home, but is planning to move, you can consider entering into a formal separation agreement with your spouse. The agreement may be limited to access to the home, but could also address additional issues such as the division of property, how bills and debts will be paid, child custody and support, and other important matters.
Laws governing separation can vary significantly between states, so if you and your spouse choose to enter into a formal separation agreement it makes sense to get the help from a lawyer to draft the agreement, and to help you choose whether to seek a legal separation, if that option is available in your state. In states that allow for a legal separation, a separation agreement may be entered as a court order that is binding upon the parties until they reconcile and dismiss the action, or proceed to divorce.
If your spouse moves out unexpectedly or is not interested in negotiating or entering into a separation agreement, your options include:
Seeking Exclusive Possession Through a Court: If your ex- has already filed for a legal separation or divorce, you can petition the court in which the case is pending to grant you exclusive possession of the marital home based upon your ex's abandonment of the home. If your ex- has not started a case, you may file your own case and then file for temporary exclusive possession of the home.
Seeking an Order of Protection: If your spouse has engaged in acts of domestic violence, or has threatened you in a manner that leaves you concerned about your safety or the safety of your children, you may qualify for an order of protection that will prevent your spouse from returning to the marital home. If you do not have a divorce lawyer who is assisting you, you may be able to get assistance or a lawyer referral from a domestic violence shelter, or may see if you qualify for representation through legal aid.
Judges hearing divorce cases are often sympathetic to a spouse who is locked out of the marital home, even if that spouse abandoned the home before trying to move back in. If you are seeking a court order to keep your ex- out of the home, you will benefit from discussing your case with a local divorce lawyer who is familiar with the practices of the court in which your case will be heard.
When a divorce or separation involves issues of child custody, the question of who cares for the children when the divorce is pending may have a significant impact on the outcome of the custody case. A parent who abandons the marital home, leaving the other spouse to care for the children, is sending a pretty clear message that the other parent is the primary caregiver. If your spouse has left you with the children, it makes sense to consult a custody lawyer about your situation in anticipation of the possibility that your ex- will attempt to move back in.
If you find that you are locked out of the marital home, the first decision you need to make is whether you are going to try to regain access to the home, or if you're going to live elsewhere. Once you reach that decision, your options include:
Seeking Help from the Police: Although the extent to which the police are willing to assist will depend on the facts of the situation, the policies of the police agency, and other demands on police time, the police may help you regain access to the marital home or, if you have decided to move out, help you recover your personal belongings from the home. The presence of police officers may help prevent the situation from escalating into an argument or worse.
Seeking a Court Order: Through your own divorce or separation case, or one filed by your spouse, you may petition the court for access to the marital home or for exclusive possession of the home.
Talking to Your Spouse: Although it's not always possible when a family conflict reaches the point that one spouse has locked out the other, sometimes it's possible for spouses to reconcile, to negotiate how they will share the marital home while they prepare for separation or divorce, or to enter into a separation agreement that addresses who may have access to the home.
If you are locked out of the home along with your children, the question of whether you are able to obtain an order of exclusive possession may affect your decision as to whether to return to the marital home.
If your spouse will be living in the home while a divorce case is proceeding, how will the inevitable household tension and conflict affect your children? How will your children's return to the home affect any custody litigation that might follow?
If you are forced to return to a shared marital home by financial circumstances, or are concerned about how returning will affect a custody dispute, you should discuss your situation with a divorce lawyer.