Take Control Blog

The Legality of Leaving the Marital Home

In divorce cases, I often see where one spouse assumes that the other must leave the marital home. Given that so many people seemed to be confused with this aspect of divorce, this is a subject worth delving into. To get clarity on this topic, I reached out to Gil R. Izquierdo, a Miami-based family law attorney and mediator.

TBK: With a divorce filing is the husband obligated to leave the marital home?

IZQUIERDO: The filing of a divorce action in the State of Florida, by itself, does not obligate either spouse to leave the marital home, and both parties may remain in the marital home while the case is pending a final resolution. The opening of the divorce case, alone, does not automatically trigger the eviction of a spouse, nor does it matter “who files first.”

TBK: Can one party, via a court action, force the other party to leave the home? Under what circumstances would the court typically issue such an order?

IZQUIERDO: Yes. Either party may request the Family Court for an order granting temporary exclusive use or possession of the marital home, which the Court would entertain before the case is finalized. If granted by the Court, it would obligate the other party to vacate the home. Other than allegations of physical violence, or issues related to the wellbeing of children, another reason warranting such an order may include situations in which the household environment is untenable and emotionally taxing. Yet, the vacating party must have the ability to secure alternate accommodations, and both parties must ensure that the marital home will be maintained. On the other hand, if one spouse has been either physically violent, or if one spouse threatens the other with violence leading the threatened spouse to believe that violence is imminent, then the victim spouse may ask the Court for a domestic violence ” stay away” order (injunction). In such instances and if the request is granted, the aggressor would be immediately removed from the marital home regardless of the aggressor spouse’s ability to secure alternate accommodations. It’s important to note that such an injunction may be requested at any time by a person that feels physically threatened by the other spouse (or significant other, if the parties aren’t married), regardless of whether a divorce case has been filed.

TBK: If the primary wage earner in the marriage leaves the home, is she/he required to continue supporting the spouse living in the marital home until the divorce is finalized?

IZQUIERDO: Only if a spouse requests such support and it’s ordered by the Court. In granting such an order, the Court will consider the immediate financial need of the spouse that remained in the home, as well as the vacating spouse’s ability to pay.

TBK: When it comes to the wellbeing of children, should both spouses remain in the marital home during the course of the divorce?

IZQUIERDO: That depends. The Florida Family Court has ruled that when children are exposed to their parents’ intemperance, quarreling, and fighting, it’s in the best interests of the children for one of the spouses to leave the marital home. However, mere harassment between the parties is not sufficient to mandate that the parties live separately.

TBK: If one party vacates the marital home, what actions should that person take?

IZQUIERDO: One should only leave the marital home after a carefully documented inventory of the contents. Time stamped pictures and video should be taken, recording the condition of all marital assets, including the structural condition of the home, to safeguard against future asset dissipation and destruction.