You Want a Divorce, But Your Spouse Won’t Leave. How Do You Get ‘Em Out?

You’re ending your marriage. But your spouse won’t leave. Can you force the issue?

Of course! You could go as far as getting a lawyer and calling the sheriff, but first you really should try to find out why he or she won’t move out and come to a more peaceful solution.

Sometimes it’s financial — he or she sees the house as at least half his or hers and won’t relinquish it. That requires legal intervention. “Sometimes it’s emotional,” says Tina B. Tessina, a Long Beach, California-based psychotherapist and author of The Commuter Marriage: Keep Your Relationship Close While You’re Far Apart.

“Try to find out what he needs in order to get him out,” Tessina says. “If it’s to help him get an apartment and help him decorate it, then do it. Of course, you are enabling him, but you are enabling him to be gone and you are willing to do whatever you need to get him gone.”

Is Their Lawyer Behind This?

Some lawyers, however, don’t believe that anyone should budge until arrangements are laid out in a temporary agreement.

“As a practitioner, I advise if there are children involved, that neither leaves the marital home until there is a custody agreement in place. If you are looking to share custody, you don’t want the perception that you are ready to leave until everything is in place,” says Judy Poller, 49, partner and chair of the matrimonial department at Dreier LLP, a Manhattan-based law firm. Poller said that while issues such as these vary state to state, in New York one thing is clear.

“You can’t get the spouse out of the house unless you can prove there is some kind of danger,” she says. “You can get exclusive occupancy during a divorce but it is very difficult, emotionally and physically. The courts don’t like to kick people out of their houses.”

What is Best for the Kids?

She added when there are children involved and issues of custody and support in the balance, being forced to live under the same roof can sometimes have a sobering effect. It is leverage. An incentive to work out the finances. The pressure that we have got to get this done so we can live apart. But some argue that living together, even though it may be financially more equitable can have some powerful and negative effects on the children, even in the best of pending divorces.

“The worst thing for the kids is watching Mom and Dad fight. There is nothing much worse than that. The second worst thing is feeling like it is their fault somehow. Some tension communicates itself to the kids even in the best of separations, even if dad moves into the spare bedroom,” says Tessina.

Poller does not disagree. “It is not good for kids to live in an atmosphere with so much tension, but if there are custody issues involved there is real concern that moving out may impair custodial rights. Getting the custody agreement done quickly is the first thing I focus on. But realistically, it often takes several months and that really depends on how quickly they want to work together and how responsive their lawyers are,” she says.

What Are Your Legal Options?

In most states, there are legal ways to have your spouse pushed out the door, Poller adds. However, she does not personally condone those in her law practice and believes they have become far too common. One of the more popular ones is actually going to court and claiming fear or threat of domestic abuse.

“People will go to family court to get an order of exclusive occupancy. Because of the climate of courts not wanting to take a chance, they often are granted rather freely and you end up having someone thrown out of the house, and a restraining order against them, and sometimes there isn’t an underlying basis. It is used as a way of getting a person out of the house,” she says.

“That’s not to say it’s not merited in some cases. I do tell clients, if he is going crazy, threatening you, acting out, or if you are in fear, call the police, get an order of protection. But I don’t do it as leverage, I don’t use the system as the way of getting someone thrown out,” she says.

“So many women on the advice of counsel take out a restraining order to get their husbands kicked out of the house. Ninety-seven percent of all restraining orders are unsubstantiated. By the time they are dismissed as unsubstantiated and bogus, the custody issue has been settled,” says Adryenn Ashley, 39, a Petaluma, California-based divorce financial analyst. It’s an issue she has some personal experience with.

“My father dropped acid and turned into a monster,” she says. “He bought a gun and my mother left. My mother needed those [domestic abuse] services. Every single person who abuses the system takes it away from someone who needs it.”

“Figuring out who is lying and who is telling the truth is just ridiculous and something the courts should not have to do. But some people out there feel that it is the least invasive method of fixing the problem,” says the author of Girl’s Guide to her Future Husband’s Last Divorce. “If you ask me, the non-slimy way to do it is just asking him to leave.”


 Your spouse’s reluctance to leave may be tied to reasons you aren’t aware of. Working with a professional coach can identify what’s keeping them from moving forward. If you’re skeptical about decision coaching, click here to learn more about it’s benefits.