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I’m Getting a Divorce. What If My Ex Won't Move Out of the Marital Home?

Posted by Elise Buie | Dec 08, 2020 | 0 Comments

It's the question Phil Collins posed in court last month after his ex-wife, Orianne Cevey, and her new husband, Thomas Bates, refused to vacate the singer's Miami Beach Mansion, estimated at 40 million dollars. Vanity Fair reported that although Collins holds the property in a company owned by him, Cevey claims she has an ownership interest. Taking legal matters into her hands, Cevey and her new hubby have denied her ex-husband access by changing the locks and alarm codes and otherwise blocking Collins and his representatives from entering.

It is an extreme circumstance, especially given the couple is already divorced. However, a situation where one spouse refuses to leave the marital home is not as uncommon as divorcing couples might think when they first begin the divorce process. How, then, can you get your spouse out of the house if they don't want to leave?

First, ask yourself if your house is worth fighting over.

Getting one spouse to move out can take time and cost a lot of money, especially for couples without Collins' financial resources. Apart from the legal expense, fighting over who gets to keep the house in a divorce will likely become the source of incredible stress, extending for months, even years.

Most couples cite their children as the primary reason they want to continue living in the marital home. Divorcing parents often prioritize keeping their children in the home they've lived in, not wanting to uproot them from the environment familiar to them. This decision is usually to one or both parent's detriment.

Parents also worry that they may have to downsize due to their impending post-divorce financial picture and that living in a smaller home could negatively impact the parenting time arrangement they establish now. More specifically, these parents fret that if they have a smaller living space for their children, they won't get to keep their children overnight as often or at all. They also fear that children won't want to stay with them because of the change in their living arrangements, including their quality.

None of these concerns need to become a reality. Staying in the marital home, especially if you cannot afford it, can create an unnecessary financial burden for you now and far into the future. The truth is kids acclimate very quickly to new environments, especially if you let them become part of the moving process, perhaps helping to pick the new residence or decorate their bedrooms. If you ask other divorced parents how they fared after moving, you will likely find they were relieved to leave the marital home, along with its expense and memories, behind.

Be careful what you wish for when seeking to keep the marital home. 

Before you begin, think hard about what you want to do. While married, you and your spouse had to pay for only one residence. Now that you're divorcing, particularly if you're the larger or sole wage earner, there will be two homes to maintain and not necessarily additional income to do so.

In the same vein, supporting the marital home once you're divorced can quickly chip away at your single budget. Monthly bills and unexpected repairs plus mounting costs as children grow older can make staying in the marital home a poor financial choice. Ask yourself if you've considered both your short- and long-term goals thoroughly before pursuing it.

If you ultimately decide to fight for the house, be systematic about how you go about it and only escalate if it becomes necessary. Being conservative to start could save you a lot of time, money, and aggravation in the long run.

Ask your spouse nicely if they will leave.

Asking nicely for what you wish for should go without saying. However, when couples begin the divorce process, they frequently have their backs up and are ready to fight. Tensions can flare quite fast, which is why it's important to consider your tone in any interaction, written or verbal. 

At this stage, feel free to sweeten your offer in any (legal) way you can. Then stick to it. Your word is your greatest asset when creating goodwill and can serve you well throughout your divorce, making it an amicable one. If your spouse isn't interested in leaving the marital home on their own accord, it's time to involve the court. 

Get a civil protection order.

Requesting a civil protection order from the court can be an effective way to get your spouse out of the house. Depending on where you live, this order may go by a different name. However, its essence remains the same: it's a civil order directing your spouse to stay away from you. That could be in the workplace, at your children's school, or at home.

If your spouse has engaged in any acts of domestic violence, you can obtain a civil protection order reasonably quickly. Incidents to document include stalking, kidnapping, harassment, assault, or battery. You don't need an attorney to file a civil protection order either; however, having one present can ensure your request is inclusive, powerfully written, and that you filed any necessary documents correctly.

Once served, your spouse will then have the opportunity to contest the order for protection. At that time, you will need to present further evidence substantiating your claims, which will be limited to those specifically mentioned in your initial filing. At that time, the judge will decide whether to extend the order or end it. It's advantageous to have an attorney present at this hearing. 

If you still cannot remove your spouse from the marital home, you need to consider moving to the next step, applying for a temporary order from the family court.

Get a temporary order in family court.

You may be able to physically remove your spouse from the marital home by securing a temporary order from the family court. Depending on where you live, you may have to file a divorce petition first.

To secure a temporary order from a family court judge, you will need to show you have a good reason for requesting your spouse to leave the premises. If your spouse has engaged in bad behavior that doesn't quite meet the standard for receiving a civil protection order, you still might be able to obtain a temporary order getting them to vacate. Again, it's beneficial to have an attorney with you at this hearing. 

Make the decision permanent.

Just because you were successful in getting your spouse to move out of the house now doesn't mean your spouse won't return later, which is why you need to make their exit permanent. The best way to do that is to buy out your spouse's interest in the house

The process for doing that begins by valuing the property with an appraisal. If you disagree with the estimation, you should obtain more than one. Once you and your spouse agree on a figure, you can pay for their share using cash or offsetting the value against another asset. How a court will distribute your property turns on whether you live in an equitable distribution state. Equitable distribution states currently include all states except Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, and Washington.

Aside from removing your spouse's name from the deed at this time, you should also refinance the home if you have a mortgage and put it in your name alone. Many people don't realize that a divorce decree does not affect who holds a mortgage, and your obligation can continue long after you are divorced if you fail to go through the proper procedures. 

Final thoughts.

If you end up unsuccessful in your attempts to keep the marital home, don't sweat it. Remember that wherever you decide to plant a flag is home because you're the one planting it.

About the Author

Elise Buie

Passionate, creative, problem-solving attorney who crafts solutions rather than obstacles. Elise spends significant time educating her clients on healthy communication skills. Elise also ensures that her clients make informed decisions by understanding the future emotional and financial implications of their decisions. Your family's future is our first priority. Elise teaches her clients new skills to empower them in the future as they adjust to the new family structure. While divorce ends a marriage, it is the beginning of your new, often times, more authentic life. Elise will help you begin that new life with new skills to handle any future challenges.

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