Ask a Divorce Lawyer: Can the court force one of us out of our mutually-owned home?

Question: Can one spouse be forced out of a mutually-owned house before, during or even after the divorce process? 

We are in the process of getting a divorce and neither of us wants to leave and essentially give up this house.


Answer: If both of your names are on the title of the property or if your state considers the home marital property, then you both have a right to the home.  If you are both living in the home, absent an Order from the Court, you both have a right to remain in the home.  However, the Court has the power to force one of you out of the home at any time.
A common reason that a person is ordered to vacate the home prior to a divorce action is due to a Domestic Abuse Injunction.  If there is an allegation of domestic abuse of any kind or harassment, the Court could grant an injunction which would require the alleged defendant to vacate the residence and refrain from coming within a certain distance of the spouse and the property.  Even if the alleged victim has no ownership in the home, some Courts may still grant him or her the right to remain in the home.   
After a petition for divorce has been filed, most states allow the parties to motion the Court for Temporary Orders which the parties must abide by during the pendency of the action.  The Temporary Order could require one of you to vacate the residence and grant one person exclusive use of the marital residence.   
The final divorce decree will determine property division and likely only one of you will be awarded the residence and the right to exclusively possession of the property.  In this situation, the person remaining in the property essentially purchases the other person’s interest in the property either with an award of property of the same value or by taking on more of the marital debt.   
Because I do not practice in your jurisdiction, I cannot give you advice as to the laws of Ohio.  Therefore, you should contact a domestic litigation attorney licensed and located in Ohio to discuss your case further.


Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.

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