By Steven E. Maalouf
It is never easy for a spouse to decide to end their marital relationship and begin the divorce process. Divorce is not something to be taken lightly, and it brings with it difficult life decisions and complex emotions. However, couples are often so focused on the short-term realities of ending a relationship that they forget this is only the first step in a long legal process. In fact, many couples are surprised to learn that their soon-to-be ex-spouse intends to remain in the marital home during the pendency of the divorce and desires to operate under the current financial status quo. It may put a husband or wife in an awkward position, especially if there is domestic violence, significant ongoing marital conflict, and/or children who are regularly witnessing and feeling the impacts of marital disputes. In these types of situations, Massachusetts offers litigants legal recourse to ensure protection for their family.
It is not uncommon for neither spouse to want to leave the marital home during the pendency of a divorce. It may be that both parties want to retain the marital home or that the parties lack the financial resources to support another household. If children are involved, it is possible that neither wants to leave without a formal parenting plan in place. The idea of moving out can be daunting and sometimes neither party is willing to make the sacrifice. In Massachusetts, under G.L. c. 208, § 34B and G.L. c. 208, § 18, the court has the authority to force one parent to move out of the marital home during the pendency of a divorce. G.L. c. 208, § 34B provides that a court may order one spouse to vacate the marital home for a period not exceeding ninety (90) days if the health, safety, and welfare of the petitioning spouse or the minor children would be endangered or substantially impaired if the other spouse was not removed. This is frequently the case in circumstances where one party is the victim of domestic violence and simply remaining in the home with one another is untenable or unsafe. G.L. c. 208, § 18 is designed to allow the court to respond with some immediacy and flexibility to harassing behaviors that may be temporarily exhibited by parties during divorce proceedings, but which do not rise to the level of a restraining order. Hennessey v. Sarkis, 54 Mass. App. Ct. 152, 155 (2002). The goal of this statute is to “preserve the peace” between the parties during the pendency of a divorce.
The divorce process is an emotionally and financially taxing experience. Having to live with your spouse after your relationship is over often makes things more difficult. Fortunately, in certain circumstances, the court offers avenues for relief. Every circumstance is unique, and the court will always undergo an independent evaluation of the facts before making a determination about how to proceed. In cases of emergency, divorcing couples should always call the police first.
If you need assistance with any domestic relations matters, please don’t hesitate to contact a member of our Family Law Group.