Cohabitation during Pendency of Divorce

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.

Continue Reading Living Together During A Divorce – The Right Decision Or The Only Choice?

I read a news article recently that listed ten signs the economy is still struggling. One of the ten was a statement that many divorcing couples continue to remain in the marital home while the divorce is pending. While I do not have any empirical data to substantiate that statement, my anecdotal information does indeed confirm that people are toughing it out together for better, or in most cases, for much worse.

There are always those people in any economy who refuse to leave the marital home for a multitude of reasons, most usually when parents are contesting custody of children. Neither parent wants to give the other any type of a "leg up", so they both stay in the home (usually to the children’s detriment).  


But in recent years, the extra money with which to operate a second household simply isn’t there. I am finding this in cases all across the financial spectrum, as cash flow in a wealthy ( and more expensive) household is suffering just as it is in those with less income. This may be the result of a job loss, lower income on investments, or many other factors over which my client has no control.

This has made my job harder, not in the sense that the legalities of the divorce work substantially differently, but rather, the intense stress that exists in a divorce is exacerbated in a situation where the two spouses continue under the same roof. A divorce that may have been at least fairly amicable can easily devolve into the War of the Roses. I find that one spouse may do annoying things just to upset the other, such as leaving dirty dishes all over the house, or refusing to take clothes out of the washer. Sound trite? It is, and it is amazing how many well educated, otherwise mature and reasonable adults reduce themselves to this level.

Continue Reading Living Together in the Toughest of Times