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"Kicking Out" Your Spouse from the Marital Home
Can I request that the court bar my husband from the marital home during our divorce?
A very common question that I receive is whether one spouse can request that the court bar the other spouse from the marital home. In most cases a spouse can only be barred from the marital home if there is a restraining order entered against him or her. However, there are many family law scenarios wherein there are no acts of domestic committed by either spouse, and it may be dangerous for the spouses to continue to live with each other.
In my experience most courts will not bar one spouse from the marital home. In most instances the courts will order that the parties must "tough it out" and continue to live with each other until their case is litigated. After the divorce case is decided, then most courts will order that the martial home be sold. Alternatively, the court may order that one spouse must "buy out" the other one. Furthermore, once the case is over then most courts will then order one spouse to leave the marital home within a reasonable time. A reasonable time in most instances is interpreted to from two weeks to two months.
Nonetheless, a spouse still has a legal right to file a motion with the court to request that it order the other spouse to leave the marital home. A spouse can request that the court exercise its equitable jurisdiction and bar the other spouse from the marital home. In the case of N.B. v. T.B, 297 N.J. Super. 35 (App. Div. 1997), the court recognized that the parties in the midst of a divorce should not ordinarily reside under the same roof. However, each case that requests a removal of a spouse must be decided by the matrimonial court. Therefore, a matrimonial court has the equitable power to remove a spouse from a marital home on a proper showing. See, Degenaars v. Degenarrs, 186 N.J. Super. 233 (Ch. Div. 1982)l Babushik v. Babushik, 157 N.J. Super. 128 (Ch. Div. 1978); S v. A., 118 N.J. Super. 69 (Ch. Div. 1972); Roberts v. Roberts, 106 N.J. Super. 108 (Ch. Div. 1969). In summary, any family disputes that requests that one spouse be barred from the marital home must be addressed by the family court.
If a court believes that the application to bar a spouse from the marital home has merit, then the court will grant the parties a plenary hearing. This type of hearing is called a "Roberts Hearing." However, it must be emphasized that the odds of success in prevailing on these types of motions are very remote. Given the strong proprietary rights afforded to a homeowner it is fairly difficult to bar a spouse from the marital home.
What are some important cases that address the motions to enjoin a spouse from the marital home?
Babushik v. Babushik, 157 N.J. Super. 128 (Ch. Div. 1978).
Here the plaintiff-wife sought to bar the defendant from the marital home. The home was titled in the plaintiff's name. There were no allegations of danger to the wife, children or property. The court ordered the defendant to leave the marital home. The court reasoned that it was New Jersey's public policy to terminate dead marriages.
Degenaars v. Degenaars, 186 N.J. Super. 233 (Ch. Div. 1982).
In this case the court once again recognized that it has broad and equitable powers to enjoin a spouse from the marital home. Here the court found that where a spouse voluntarily left the marital home, and maintained a home elsewhere and wished to return to the marital home, even where there was no definitive proof of danger of physical or emotional harm to the remaining spouse and children if he returned, the spouse could be enjoined from the marital home. The court further held that it would be in the best interests of the children if their lives were not traumatically invaded by the defendant's desire to reside in the marital home.
N.B. v. T.B., 297 N.J. Super. 35 (App. Div. 1977).
This was the first case that contained the appellate court's first expression of approval for a trial court to grant an applicant's request to enjoin a spouse from the marital home where the spouses' behavior does not necessarily rise to the level of domestic violence.
Roberts v. Roberts, 106 N.J. Super. 108 (Ch. Div. 1969).
Here the plaintiff-wife sought to bar her husband from entering the marital home. The parties owned the home as tenancy by the entirety. There were no minor children living in the home. The court held that it has the statutory and general jurisdiction to grant plaintiff's the requested relief. The court based their decision on the equitable maxim that equity will not suffer a wrong without a remedy.
S v. A, 118 N.J. Super. 69 (Ch. Div. 1972).
In this case the major issue was whether a mother's mental and alcoholism combined with her unannounced absences and returns from the marital home were so averse to the best interests of the parties' children so as to bar her from the marital home. In granting the husband's application to bar the wife from the home, the court used its equitable jurisdiction that, "nothing would be more protective and in the best interest of the [parties'] children that a stable home where their roots are."
If the divorce is being filed under one of the seven fault grounds (including extreme cruelty, adultery, abandonment, substance or alcohol addiction, institutionalization, deviant sexual conduct and incarceration), the 18 month separation period, required for a no-fault divorce, is waived. However, each ground for divorce has its own stipulations.
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