Spousal eviction during a New York divorce

When you and your spouse call it quits under less than amicable circumstances, you probably don’t want to be in the same house, let alone room. Since an amicable and equitable living arrangement appears to be impossible, is there any way you can “evict” your spouse from the marital home in New York?

It’s possible, but it’s not easy. And whether or not you are successful depends on the situation.

Getting a court order- Pendente Lite

Any property acquired during the marriage, including the marital home, is considered jointly owned. Even if your spouse’s name is not on the deed and the monthly mortgage payments come from your paycheck, you can’t simply evict them.

Courts in New York will generally not remove someone from their own home unless they are a danger to their spouse and/or children. New York Domestic Relations Law 234 does, however, grant this type of relief if it appears to be necessary to avoid damaging marital or domestic strife. When making a decision, the court will consider factors like the following:

• The emotional ramifications of you and your spouse continuing to live under the same roof
• The existence of alternative housing options for both parties
• The willingness of both parties to voluntarily pursue these options

Since the request is made as part of a divorce proceeding, there needs to be a stronger reason for your spouse to be removed than the simple assertion that you no longer get along or he/she is behaving unreasonably towards you. Courts are also wary of relief being requested to create prejudice against your spouse or give you an advantage in a custody dispute.

Eviction and domestic violence

If you are a victim of domestic violence, then you have absolute justification for removing your spouse from the marital home. In this instance, you should immediately file for an Order of Protection, which will bar your spouse from the property and require them to comply with certain requirements, such as staying away from you and the children, paying child support, and refraining from owning a gun. Violating temporary and final Orders of Protection is illegal, and if your spouse does so, then you can call the police.

If you want your spouse removed from the marital home, whether to assure your safety or that of your children or if their presence causes emotionally damaging levels of discord, then consult a New York family law attorney who can advise you on how they may legally be evicted. As long as the request does not have an ulterior motive, New York courts are inclined to grant petitions that support the safety and security of you and your family.

Contact the lawyers of Eskin & Eskin, P.C., a family law firm for family law matters, for legal advice regarding divorces and domestic violence. They have over 40 years of combined experience and have handled a wide variety of cases. The lawyers offer free consultations and can be reached at 718-402-5204 or through their website at www.EskinAndEskinLaw.com.