I Moved Out Due to Divorce in Wisconsin. Why Can’t I Go Back To the House?

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.

I Filed for Divorce in Wisconsin. Who Has to Move Out of Our House?

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.