Do I have to continue living with him during the divorce? Can I force her to leave? Can I just move out? If I move out, can I take the children with me? These questions arise during the course of almost every divorce proceeding, and the answers are often not what people want to hear.
In New Jersey, the general answer to whether you can "make" the other party leave the home during the divorce is "no," except if that other party commits an act of domestic violence that results in a restraining order. Other than that, the options are limited. For instance, there exists what is known amongst New Jersey family lawyers as "Roberts" relief, allowing a court to Order the removal of a spouse without an event of domestic violence, so-named after an older case that many courts choose to no longer even follow in light of current domestic violence laws. We were recently successful in obtaining one spouse's removal from the marital residence pursuant to Roberts, but the circumstances there were so severe that such relief was warranted to prevent irreparable harm from happening to the children.
With such limited options, often the only choice for parties is to continue living together during the divorce. If the parties are able to get along and co-exist, recognizing that children living in the home will potentially be impacted long-term by what goes on in the home during the proceedings, problems are less likely to arise. By contrast, however, if the matter is acrimonious, there can be few things worse than having to live together, especially if the matter drags on for months, if not years. During one matter in which we were involved, it took almost three years before the parties ultimately settled. During that time, the parties continued to reside in the marital home together with their young children. By the time the matter was complete, one parent had completely alienated the children against the other parent, reunification therapy was necessary and the parties were completely unable to be near each other, let alone communicate in a rational manner. While filing a motion to address such circumstances is more than appropriate, there is only so much Court intervention can do when it is not there to oversee the day-to-day occurrences in the marital home.
Another result of these limited living options is that spouses are often hyper-vigilant to anything that goes on in the home. One party (if not both) is often recording the other party without his or her knowledge and, in an effort to obtain what is believed to be usable "evidence" in the divorce proceedings, will incite arguments, welcome conflict, and the like. Every argument appears heightened and can be abusive, often leading to the domestic violence complaint and temporary restraining order that the alleged victim hopes will become a final order to keep the other party out of the home for good. Whether a court finds, however, that the argument that resulted in the restraining order was heightened merely because of the divorce or was an actual act of domestic violence requiring immediate protection is a steep hill for the victim to climb. The result could be a dismissal of the domestic violence complaint, thereby allowing the accused spouse to actually move back into the marital residence! In one matter in which we were involved, the temporary restraining order was dismissed after a final hearing and, within a few hours, the other spouse was at the front door of the home to get back in.
Another option is to mutually agree to withdraw the domestic violence complaint and enter into an Order by consent, incorporating "civil" restraints that are enforceable by a motion in your divorce proceeding. A common restraint as part of such orders is that the defendant spouse in the domestic violence complaint will agree to stay out of the home. However, that spouse will often refuse to agree to stay out of the home, knowing the potential financial and custodial impacts his departure may cause for the overall outcome of the divorce proceeding.
At that point, can you leave the home? Of course. Can you leave with the children? Usually not without a set parenting schedule upon your departure or some form of Order allowing you to do so. While you might have always been the primary caretaker, that usually does not necessarily entitle you to simply vacate the home with the children and dictate parenting time as you see fit. From the other parent's perspective, he might believe that you are simply looking to get a "leg up" in the litigation, just as he might have felt you were trying to do when you filed that domestic violence complaint during the divorce proceeding.
To that end, many cases commence with one party having already left the home for a variety of reasons. If the spouse who vacated the home was financially supporting the household, and the other spouse remains in the marital home with the children, he might find it financially difficult to support two households during the divorce proceedings stemming from a pendente lite (during the proceeding) support obligation. It is all too common for that supporting spouse to all of a sudden show up at the door as the divorce starts, seeking to move back in. Whether his lawyer advised him to move back home because of the financial burden that is soon to befall upon him, or that he is hurting his own custody claim if he is not in the same residence with the children 24-7 during the divorce, oftentimes he has the ability to move back in to the chagrin of the other spouse.
Where does that leave us? It is for that reason why getting along or simply managing to co-exist in the marital residence (whether for the sake of the children or otherwise) is critical to moving a divorce matter forward in what one hopes will be a reasonable manner.