Can I get exclusive use of the home during my divorce?
Divorce can be a time of stress and uncertainty. People change living arrangements and residences, sometimes voluntarily, and sometimes by court order. As family law lawyers based in Portland, Oregon, we hear lots of questions about who gets to live in the marital home during a divorce. We hear questions like:
- Will one of us have to move out?
- Can I make my Husband / Wife move out during the case?
- I am worried about the kid’s once he or she is served. Can I exclude my spouse from the home to protect the kids?
- Can I make my Husband or Wife move out even if we don’t have kids living in the home?
Once someone files a divorce, legal separation, or annulment case, the court can provide for “temporary orders.” You can seek temporary orders between the time of filing and the time a final judgment is entered. One type of relief you can ask for is to have exclusive use of property during the case, including a home. ORS 107.095(1) (f) provides that the court can make orders “[f]or the temporary use, possession and control of the real or personal property of the parties or either of them and the payment of installment liens and encumbrances thereon.”
If minor children live in the house, the court can exclude a party from the home if it is in the children’s best interests. ORS 107.095(1) (d) provides “[t]hat if minor children reside in the family home and the court considers it necessary for their best interest to do so, the court may require either party to move out of the home for such period of time and under such conditions as the court may determine, whether the home is rented, owned or being purchased by one party or both parties.” With kids in the home or apartment, either party can ask to kick the other one out regardless of who is on the lease or title.
Even if there are no minor children live in the house, and there is a threat of violence from your spouse, you can ask the court to exclude them. ORS 107.095(1) (g) provides “[t]hat even if no minor children reside in the family home, the court may require one party to move out of the home for such period of time and under such conditions as the court determines, whether the home is rented, owned or being purchased by one party or both parties if that party assaults or threatens to assault the other.
Basically, if you have kids in the house and it is good for them, the court can exclude either parent. If you don’t have kids in the house, and your spouse threatens you, you can exclude them. However, without kids or a credible threat, the court has no power to exclude either parent. If you can’t reach an agreement on sharing the house or who will move out, you can ask for exclusive possession of the home. You should consult with an experienced family law attorney prior to filing such a motion, because asking to kick your spouse out can turn a potentially cooperative case into a high conflict and expensive case.
