When one party moves out of the marital residence at the onset of a divorce case, there is often a lot of concern about why the other spouse ‘gets’ the house or why they can’t return to the house after they have moved out. Legally, just because one party moves out, does not mean that he or she is giving up any interest in the house. It just means that he may have given up his right to live there on a temporary basis.

If the Court has made a Temporary Order granting one party (ie husband) the temporary use of the house, the other party (wife) may not enter the house without the permission of the residing spouse. In this scenario, if the wife tries to enter the house without the husband’s permission  the wife could be held in contempt of court and face monetary penalties and even imprisonment.  It’s best to make sure that you have something in writing from your spouse or counsel, if you are entering the marital residence for any reason if your spouse was granted temporary use by the Court.

There are many instances when one party moves out before there is a court order, and then wants to return to the house later. Legally, if there is no court order barring you from returning to the house, you can return. However, you need to carefully decide what the consequences of returning to the house might bring.

For example, if your return to the house results in an argument, your spouse may call the police and you could be charged with disorderly conduct and potentially face being served with a domestic abuse restraining order if your spouse alleges domestic abuse or threats of it.

The court also will consider your actions at a hearing for Temporary Orders or other matters in the case. If you are returning regularly without notice to your spouse, if you are removing furnishings without agreement or if you are causing disturbances at the house, your behavior may be negatively inferred against you in issues involving custody, placement or property division. If you break a window or lock to enter the home, the Court could also hold you responsible for those costs and your spouse may seek a restraining order against you.

If you have moved out of your house and you want access to the house to retrieve personal property or any other reason, your best bet is to work with your attorney to schedule a date and time for you to enter the home and an agreement as to what you can remove. This will minimize conflict between you and your spouse and avoid police involvement and/or domestic abuse allegations against you in your divorce case.

Do remember though, that the restrictions go both ways. Just as you may not go into the marital property if you are restricted from it, your spouse cannot come to your apartment or new place of residence and demand access either. You both have the right to expect privacy and it is common courtesy to refrain from entering your spouse’s residence without permission, whether you own that property or not.  It helps to look at it this way: landlords cannot enter a tenant’s property without notice except in extreme circumstances and, once you move out, you essentially become the equivalent of a landlord to your spouse.