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Sep 20 2022

We are getting a divorce, time for the other spouse to move out, right?

Living together in the course of a divorce is a difficult situation. Often parties separate with one party moving out, which then alleviates the dual occupancy of the home issue. There are other instances where neither party moves out. Perhaps the other party can’t afford to move out, or for the sake of proximity to the children and various childcare issues, there’s a good reason that they both continue to live there. Oftentimes, it’s to the chagrin of our client that the other party is still in the house.

I want them out; what can I do? By and large, there are no self-help remedies available. Yes, as a titled homeowner you can change the locks, but the other party could just as easily hire another locksmith to change the locks again, at which point you don’t have the new key to the new set of locks.

Alternatively, the other party as a titled homeowner can legally break in. There’s nothing criminal against compromising the window or door of your own house. However, depending on how the break-in occurs, there are other criminal concerns such as Disorderly Conduct – Disturbing the Peace or Assault (the fear of bodily harm Assault).

More flies with honey than vinegar. Your next best bet in that circumstance is to secure an agreement as to them not coming back into the house. This entails getting them to stipulate that they’re going to stay away and that you, as the remaining spouse, have exclusive use and occupancy of the house. We not only want to get that in writing, but also signed by a judge – this will make it enforceable in a court of law and enforceable for law enforcement; only then can you change the locks because the other person doesn’t have the right to come and go anymore.

How absolute is that right? With exclusive occupancy that is court ordered, your spouse has no more right to come and go onto the property than your neighbors or your friends or strangers: they all need permission.

Help from the Court. If we can’t get them to agree, the next step is securing a temporary order from the court. If you’re in Minnesota, it will take a couple months to get a temporary hearing. But if you’re in Wisconsin, it’s a matter of weeks to get a hearing. In Western Wisconsin, they use templates for court orders: it’s a series of boxes where the court checks the boxes and blanks that the court fills in and then they sign it. And then that becomes the court order. Those boxes include assigning to: Wife or Husband: the exclusive use and occupancy of the home and ordering  Wife or Husband to move out of the home no later than _______(date).

The balance in family law. In family law we always have two options – work something out amicably with opposing party or ask the court to resolve the dispute. Hence our clients are never held hostage by the unreasonableness of their spouse. On the flip side, we also are not required to endure the cost, time, and uncertainty of what a judge is going to do.

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