Full question:
A divorced couple own a house jointly (each owns 50%) in Tucson, Arizona. One party wishes to move out; the other doesn't. How is this resolved?
- Category: Divorce
- Subcategory: Property Settlements
- Date:
- State: New York
Answer:
Usually each spouse has as much legal right to be in the home as the other, until a court orders a spouse to have "exclusive possession" of the matrimonial home, or one spouse agrees to move out. Simply not wanting to live with your spouse isn’t sufficient grounds to lock him or her out of their home. However, if you have grounds to fear immediate violence, it may be reasonable to lock your spouse out until the police can be contacted and a restraining order obtained. Emergency, temporary court orders can be obtained in extreme circumstances.
Sometimes when a divorce action is filed, one party will ask for exclusive possession of the marital residence to be awarded pending the distribution of assets in the divorce decree. In some cases, a party will ask for a restraining order to prevent another spouse from entering the premises. Typically, a threat of harm needs to be shown before the court will grant a restraining order. However, without a court order, a spouse may not lock another co-owner spouse out of the home when the other spouse hasn't already abandoned the premises. If the premises has been abandoned, it is possible the other spouse could be awarded exclusive possession and the right to change the locks.
The court will divide the property of the parties as it deems equitable under the particular circumstances of the case. All of a party’s property is subject to division if the court determines that the other party contributed to the acquisition, improvement, or accumulation of the property. Moving out alone typically won't affect a spouse's position for property settlement purposes, but there may be issues with support/parenting time if there are minor children.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
