In cases where the relationship between husband and wife has seriously deteriorated, one of the first issues that arises is: Who moves out of the marital residence? This can be a very difficult issue. Most of us have strong attachments to our homes. It’s where all our “stuff” is and often where our children reside. Many parents are extremely reluctant to leave.

At the same time, if tensions are rising and arguments exploding in the house, a parent may be desperate to have the other parent vacate. I advise clients that if they wish to litigate the issue (the only way to compel a reluctant spouse to leave), the Court will insist that we prove one of the following: (1) that the spouse already has an alternate residence and his/her return will only jumpstart domestic strife or (2) the spouse poses physical harm to you. The latter requirement is the most common you see and it is not easy to satisfy. It is necessary to prove by evidence physical harm has taken place (photos, police reports, orders of protection).

Since the standard is so high, it is very difficult for lawyers and clients to deal with. The lawyer is essentially advising his/her client nothing can be done until the client is harmed. In my practice, I have often immediately placed the offending spouse (if he is not represented) or his lawyer on notice that I have been advised of his past acts and that I am watching him. If he transgresses I will have no compunction to bring an action in court. This often (but not always) works.

If you wish to schedule an initial consultation please contact me at 212-605-0435 or 516-280-3123.