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Law Matters: Struggling to share a home while divorcing

Published 10:56 am, Friday, November 23, 2012
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You have been married for a while and you live with your spouse. You have three children together, all enrolled in public school. Your spouse works, you are a full-time homemaker and parent.

But you are unhappy, and have been for a while. You have no idea what to do about it, because you are afraid of change. You cannot imagine divorce. But you cannot imagine staying like this for much longer. You have tried couples counseling and that has not worked. Finally, you realize your marriage is over and divorce is inevitable. You bite the bullet and face divorce.

Papers are served, and the proceedings begin. While it was not fun living together before the divorce began, it is really awkward now. You are uncomfortable in your own home, and you feel you cannot continue to live together. You would like your spouse to leave. Your spouse would like you to leave.

You ask your spouse to leave and the response is, "This is my home, and I am not leaving. Besides, where would I go, and how would we afford for me to live somewhere else?"

Then, you spouse adds, "If it is so awful, why don't you move out?"

You reply, "I am not leaving the children, and besides, isn't it easier for one person to move, than four?"

With the tension escalating, arguments become more heated and they erupt in front of the children. Fighting is constant. Surely, this is not healthy for anyone. But what to do?

This is a fairly typical situation for divorcing couples.

How do you get your spouse to move out during a divorce? The short answer is "not very easily" without an agreement between the parties. You can file a motion for exclusive possession of the marital premises, but these are tough motions for the court to decide absent a clear showing of physical abuse where there is evidence of danger.

The court may order one party to vacate if a spouse is in danger of physical harm. But if it is a situation where it is uncomfortable, tense, unhappy, awkward or difficult to reside together -- but not dangerous -- the court must take into consideration the family finances, and inquire as to whether there is sufficient income to support two households, and whether it is fair to oust one spouse.

In these tougher economic times, it is harder to divide one income into two households. It is best to work out an agreement about living arrangements in advance of filing for divorce. Remember, it is important to minimize conflict. This is even more true when you are smack in the middle of a situation that is by definition naturally high-conflict.

Many couples who cannot afford to live separately during the divorce have learned how to divide the marital residence into separate living quarters. And to schedule time out of the house so that one parent can visit with the children uninterrupted by the other parent.

If at all possible, choose a neutral mediator (friend, therapist, clergy, family member), someone you both trust to be neutral and fair to both of you. Work together ahead of time and come to an agreement about either, 1) how to live separately during divorce, or 2) to continue to live together and share daily life while going through your divorce.

Susan F. Filan is a lawyer with a practice in Westport. She is a former state prosecutor and has been a legal analyst for NBC News, MSNBC and CNN.