How Can I Keep My Spouse Out of the House?
How can I keep my spouse out of the house? Domestic violence, order of protection; changing locks & security code; kicking wife, husband, spouse out of house; exclude; petition for exclusive use of marital residence.
When I first meet with clients, they often always ask this question, “How can I keep my spouse out of the house?” Who stays and who leaves the marital home is a very important issue in the early stages of every divorce.
Hi. My name is Miles Mason. I’m a divorce lawyer in Tennessee and the founder of the Miles Mason Family Law Group. We represent clients in the greater Memphis, Collierville, Germantown, and Bartlett, Tennessee areas.
This message is about what you can do to keep your spouse out of the house.
Here’s a typical situation. The spouses are in constant conflict and can’t live under the same roof any longer, so they separate. If they have children, one parent is likely to stay in the home with the kids. The other parent moves out. That’s not always the case, of course, but it happens often enough. If only that were the end of it. The other parent moved out, but keeps coming back, returning to collect bedding, towels, pots and pans. As far as the other parent is concerned, he or she is entitled to furnish a new apartment, to come back for the sofa, chairs, a dresser, and some reading lamps. He or she needs tools and equipment, too, so things get taken from the garage. Every time the resident spouse comes home from work, something else is missing from the house. There are dirty dishes in the sink. The other parent has used the home computer, done laundry, and taken a shower. The resident spouse wants the other parent to stop taking things and to stay out of the house.
How can you keep your spouse out of your home?
Here’s my first concern. Are you the victim of domestic violence? If there is abuse, then seek an Order of Protection. That order prohibits your spouse from approaching you.
It’s an injunction. If you are in the house and your spouse approaches, then you can have him or her arrested for violating the court’s Order of Protection.
Here’s the basic process for obtaining a protective order.
You file a petition with the court requesting a protective order. This is a civil proceeding. But for safety reasons, your spouse is not notified of the petition and is not present.
The judge reviews the petition for temporary and permanent relief. Based on the petition and ex parte hearing with you, the judge may grant a temporary Order of Protection. That temporary order is good for 15 days, effective immediately. A hearing date must be set within 15 days on the extended order. Your spouse is served with both the Order of Protection and the Notice of Hearing. In the interim, under the temporary Protective Order, your spouse must stay away from you. And must stay away from where you live.
At the full hearing, you can present any evidence of domestic violence. You can also bring witnesses to testify about what they know. If the judge extends the Order of Protection, then your spouse must continue to stay away from you. If your spouse violates the order, call the police. Violation of the Order of Protection is a crime.
What else can you do to keep your spouse out of the house?
There are options. We don’t have criminal trespass in Tennessee. The spouse who moves out, but returns at will, is not trespassing. And it’s not a crime unless there’s an Order of Protection barring his (or her) return.
So what can you do?
First. Notify your spouse to stay away from your residence.
Put it in writing and keep a copy for your file. Or have your lawyer send the letter. Tell your spouse to keep away. Don’t be wishy washy or waffle on your decision later.
Second. Consider changing the locks and security codes.
This is not as clear cut as you might think. Some family lawyers may advise changing the locks immediately, along with security codes and garage door openers. Talk to your lawyer as soon as your spouse moves out and discuss the advantages and disadvantages. Then simply wait, and deal with the situation only when the other spouse complains about access. That is, seeking court-ordered permission to exclude the other spouse.
There are important considerations, though.
Expenses associated with the marital home must be paid until the divorce is finished. How will the mortgage, utilities, and upkeep be paid? If the spouses can agree on who pays what expenses, then great. If they can’t agree, then one (or both) may file a motion asking the court to order payment of expenses pending the divorce being final. The order would allocate costs between the spouses.
This is where things can get sticky.
In court, the excluded spouse – the one excluded from the residence by court order – may have an advantage when it comes to sharing those expenses. That’s solely because the spouse living in the home sought to exclude the other spouse. It may be unfair to kick a spouse out of the house, then make him or her pay every dime of the expense. Especially if there was no adultery, no violence, no wrong-doing. On the other hand, just moving out (say, to be with a boyfriend) will not excuse the spouse’s financial obligations.
Talk to your lawyer.
Make a strategic decision based on your situation and your goals. Finally, take a look at some related questions answered in my Divorce FAQs page.
I’m Miles Mason from the Miles Mason Family Law Group. Thanks for joining me.