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Can I Kick My Spouse out Pending the Divorce?


Once your action starts, an immediate question that sometimes arises is whether you have to continue to live together pending the divorce. That is a complicated question. First, if there are no children, it might be easier. Sit down with your spouse and see if it makes financial sense to live apart. Remember, whoever leaves will now need to pay rent and all other expenses that come with living on your own. That person might have family close by, perhaps they can temporarily move in with them, however, that may or may be feasible. Ultimately, if there isn’t a voluntary move, it is hard to simply have one person move out.

Before addressing the procedure for removing a person from the marital residence, also known as getting exclusive use and occupancy, lets address the same issue with children involved. Its gets complicated. First, you would be asking for a parent to leave their children during this traumatic time. Keeping both of you in the house may be in the best interests of the children. Second, if one person does leave, an argument will be made that the spouse who left believes that the remaining parent is to have custody of the children. So if custody is an issue, leaving the marital residence has far reaching consequences.

So, how do you remove a spouse from the martial residence? First, voluntarily. If they set up a separate residence, then it is easier to say to a court that they should not come back. Hopefully with a new residence, you will not need to involve the courts. If an agreement cannot be reached you will need to go to court and argue that it is dangerous for your spouse to be in the same house. Not just physical danger but in some cases psychological abuse may qualify for a reason to involuntarily remove your spouse. In addition to this stated and hopefully substantiated argument, it will help if your spouse has a realistic place to relocate.

Ultimately, this is a big decision with far reaching consequences. Ensure that whatever you decide it pushes you to whatever you believe is in the family’s best interest. Focus on your outcome, stay strong and keep taking ground.




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600 Old Country Road,

Garden City, NY 11530, Suite 337

Tel: 516-228-5050/ Fax: 516-228-8160

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