When two people go through a divorce, they also must go through the process of separating themselves from each other. Often we are asked by clients: ‘when will my spouse have to move out?’ The answer to this question is not always easy and usually is very complex.

If there is domestic abuse or a restraining order/injunction between the parties, the law presumes that the parties cannot live together. In those situations, one of the parties (often the aggressor) will be ordered to move out of the marital residence.

At the beginning of a divorce case, parties can request that the Court schedule a hearing to determine Temporary Orders. The purpose of the these Temporary Orders is to establish who lives where, pays what bills, pays what in support, spends time with the kids, etc, etc.

The Court urges parties and attorneys as soon as they begin work on a divorce case to begin discussing the parties’ physical separation. Often one party is willing to move out or prefers to move out, so the answer is easy. Some times, however, neither party is willing to move out, so the Court is forced to make an Order.

The court has a variety of options: neither of you is required to move out, your spouse is required to move out, or worse, you are required to move out! The Court will consider a long list of factors to make this decision. That list might include: Who can afford the house? Who can maintain the house physically? Who will have primary responsibility for the kids? Does someone have another place to move (ie family nearby)? Does one party not have any family or friends in the area with whom they can stay? Does someone work from home and, therefore, need to stay in the house? Clearly, the decision as to who can stay in the house depends on the specific facts of your case.

The Court may not order either party to move out, and, in fact, rarely does unless there is domestic violence. This is especially true if there is a dispute about placement of the kids. The Court may be wary to force one party out and have to make a temporary decision regarding placement, if the parties haven’t been to mediation or there isn’t input from a Guardian ad Litem yet. In those cases, the parties are basically forced to continue to live together until they complete mediation or a GAL makes a temporary recommendation.

Some parties realize that they don’t want to live together, but they can’t afford two homes. In those cases, the parties might try a “nesting arrangement”. This is when the kids stay in the house and the parents rotate in and out. The parents might stay with a friend or family member on their ‘out days.’ Or maybe the parties rent one apartment that they alternately stay in when it is their ‘out day.’ This arrangement requires a lot of cooperation with the parties which might be hard to do in some cases.

The bottom line is an agreement to separate often is best in cases. Working with your attorneys for creative ideas to resolve temporary issues can often help minimize the conflict and cost of deciding where you will live until the divorce is granted.