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.