My colleague, Jordan Bowne, recently explored the issue of whether the marital home should be retained by a party or sold when assets are divided in a divorce. Before getting to the point in the process where that decision can be made, parties often find themselves in the uncomfortable position of living together after their relationship has soured and contested litigation is underway. Going through a divorce is hard, but it is even harder when you are still sharing a bathroom with your soon-to-be ex. Clients sometimes think that one party is required to move out once a divorce matter is filed with the Court, but that is not the case. When the stress of living together gets to be too much, the question often asked is – how do I get my spouse out of the house?
The easiest, and best, option for separating is to have an adult conversation about who should stay living in the shared residence and who should move out. This will necessarily include consideration of finances in the short-term, how time and relationships with the children will be impacted, and how long the divorce process will take.
When a mutual decision is not an option and tempers are flaring, court intervention can become necessary.
Under Massachusetts law, a spouse can file a Motion to Vacate – which is a request pursuant to M.G.L. c. 208, sec. 34B that a spouse be ordered to leave and stay away from the marital residence for a period of up to 90 days. In order to issue a vacate order, the court must find that the health, safety or welfare of the moving party, or any minor child in the home, would be “endangered or substantially impaired” by a failure to issue the requested order. The court can issue an order to vacate even where one party has already moved out – in essence, to ensure that the party does not return for 90 days. The court can also issue an order to vacate when the party seeking the order does not reside in the home at the time the order issues, or if the party seeking the order left the home for safety reasons. The standard imposed by G.L. c. 208, sec. 34B is a stringent one, which it should be, given that the issuance of an Order to Vacate removes a party from the home “forthwith” and comes with criminal consequences in the event a party violates the Order.
Mere anxiety, stress, discomfort, or displeasure are not enough to support a Motion to Vacate. If neither party is willing to move out of the shared home, absent evidence that the health, safety or welfare of a party or child is endangered, the parties may need to continue to reside together despite the bad feelings that doing so evokes.
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