Abandonment, Occupancy and Access To The Property During a New Jersey Divorce

If you are contemplating a divorce or separation one of the trickiest issues to navigate is who will stay in the property while the divorce is being worked out and who will go. If you can agree on who will stay and who will vacate, and you can agree on how you will handle the household finances during the divorce, then you have resolved what is oftentimes a major hurdle in the divorce process. Similarly, if you and your spouse can live in the same house together while going through a divorce then you are in a very good position to get your case settled.

This blog post concerns the situation where the parties cannot live together while the divorce is being worked out. If you find yourself in this situation, and you need help figuring out your next move, do not hesitate to contact my office at 201-731-3086, or via e-mail using the e-mail contact form found on this page.

At the outset, it should be noted that if the property that you live in is jointly owned neither party has a greater right to occupy it during the divorce. It should also be noted that even if the property is solely owned by one party, that party does not have the right to eject or remove their spouse from their property. Once you are married there is a right to joint possession of the marital home until a divorce is granted. Because neither party has the right to unilaterally remove the other party from the property stalemates can ensue.

Stalemates can arise when one party can’t leave and rent an apartment because they have neither three months rent as deposit money nor good credit. Stalemates can also arise when there is no alternative place to reside, even temporarily – family is not local, and imposing on friends would be too burdensome. Additionally, if one of the parties is not employed they have no chance to go out on their own unless and until they receive some form of support if it’s warranted.

Often times the exchange during a stalemate is similar to the following, particularly when one party wants to stay and work on the marriage and the other party can’t even discuss working on the marriage until the other one leaves.

Spouse 1:         “Please leave.”

Spouse 2:         “I’m not leaving. This is my house. If you’re so  miserable then you leave.”

I have received calls from potential clients who want to know what happens if they leave when their spouse asks them to. They are concerned that their spouse will be able to claim that they abandoned them, and they will lose rights in the divorce. Similarly, I have received calls from potential clients who have asked their spouse to leave with no success, and they want to know how they can get them to leave. For each circumstance there is usually an answer, but it depends heavily on the particular facts of the case.

Probably the most unfortunate byproduct of a stalemate over who will occupy the property is that it can lead to domestic violence incidents between otherwise very rational people. If either or both of the parties are angry, hurt, or sick of the other, and they’re locked up together in the same house, a miserable but manageable cold war of living separate lives under the same roof can quickly turn into a hot war due to an offhand comment, or other minor triggering incident.

It should be noted that if one party does take the action of moving out (fully or partially) the general rule is that they cannot just drop back in to the house without their spouse’s consent when they want to, and come and go as they please. The courts view a move out as a permanent move. Once one party moves out a request can be made to the court to have the locks changed.

If you find yourself in a stalemate similar to the one described in this post don’t hesitate to call my office to discuss your situation. I have been a divorce lawyer in the Bergen-Passaic and Essex-Hudson county areas for over 20 years. You can reach me at 201-731-3086 (toll-free at 844-431-3380) or via e-mail, using the contact form, to discuss your case. The consultation is free.