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What To Do When Your Spouse Won't Leave

By James Livesay, Partner at Livesay & Myers, P.C.

Your marriage has broken down. You are the victim of an unloving relationship, verbal abuse, physical violence, or infidelity. You are getting divorced. Yet, despite all that has happened, there your spouse remains, in the marital residence, despite your repeated requests that he or she leave.

You have consulted with an attorney, who advises that so long as your spouse remains in the residence, your legal options are limited in certain respects. Namely, a court is unlikely to issue a custody, visitation or child support order while the parties are still living together. And, by living together, you are potentially endangering any suit for adultery against your spouse.

What do you do?

There is no one answer to this question. There are several ways to get your spouse to leave, depending on the facts of your case.

  • Seek a Protective Order. If you are a victim of domestic violence, you have the right to seek a protective order. A protective order can not only protect you from your spouse's physical abuse, threats or unwanted contact, but can grant you exclusive possession of the marital residence. If you and your spouse rent, rather than own, your residence, you will have the right to terminate your lease following issuance of the protective order.
  • Seek a Temporary Order for Exclusive Possession. If you have already filed for divorce, you should be aware that you have the right to seek exclusive possession of the marital residence during the period your suit is pending. You can seek such an order at your pendente lite, or temporary, hearing that should address such matters as temporary custody, visitation, and support, among other things.
  • Change the Locks. This option may seem obvious, but sometimes spouses remain living together due to inertia more than anything else. Taking action by locking your spouse out can sometimes send a strong enough message to change your spouse's behavior. You should be aware, however, that in the absence of a court order to the contrary, your spouse can legally re-enter the house so long as his or her name remains on your deed or lease.
  • Negotiate an Agreement. Your spouse can always choose to leave pursuant to a binding agreement with you. Typically, separation agreements, which ideally resolve all the issues that can arise in a divorce case, will grant one spouse or the other exclusive possession of the marital residence. Once your divorce is finalized, the agreement will be enforceable as a court order.

If you want to have your spouse removed from the marital home during your divorce case, consult with an experienced family lawyer as soon as possible.


James Livesay is a family law attorney at Livesay & Myers, P.C. He is one of several Leesburg divorce lawyers in the firm, handling separation, divorce, custody and support cases throughout Northern Virginia

James Livesay can be contacted by phone at (571) 208-1267 or or Visit Web Site

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