Call Us TodayCan a spouse move back in during divorce? That question can be very complicated. Technically, without a temporary or final restraining order, the spouse is still entitled to live in the house, legally. However, the length of time your spouse has been out of the house and your particular situation, including what grounds the divorce was filed on, can determine whether or not it is appropriate or a good idea for the two of you to be living together anymore.
There are a lot of different scenarios when a spouse has moved out and wants to move back in. What you can do legally and what is in your personal and pragmatic best interests to do will depend on the individual circumstances of your marriage, family, and divorce. You should speak with an experienced divorce lawyer in New Jersey if your spouse has indicated they are going to move back in to learn what your options are for stopping it if that is what you are hoping to do.
On the other hand, if you are the spouse who moved out (and it was not due to a restraining order) and you want to move back in against your spouse’s wishes, you should first get legal advice because there are some issues that may evolve if you move back in that you should be aware of to prevent and be on guard before you do make that move back. . Your spouse may or may not be able to keep you out based on the issues and facts of your divorce. You may be entitled to return to the home—again, dependent on the situation.
My Spouse Wants to Move Back Home. What Should I Do?
What you should do first is consult with an attorney in New Jersey who can provide educated guidance for your unique scenario. Every situation is different with its own facts and details.
If there is a restraining order against your spouse, you can call law enforcement if they show up and attempt to move back in. If you never had a restraining order against your spouse but domestic violence was an issue in your marriage or you have become fearful of them for some reason, you could ask the court for a temporary restraining order that, if granted, would keep them from coming back to the home. You would need to show the court evidence of why you need a restraining order as you should only be using this if you have a real concern and not to gain any sort of leverage or perceived leverage in your upcoming divorce; that will inevitably backfire on you.
If your spouse moved out voluntarily and domestic violence was not an issue, you may be able to keep them from moving back in, but if they are insistent, you would need a court order to do so. To get a court order, you would have to show the judge how the spouse moving in again negatively affects you and/or your children. A spouse moving in and out at a whim can be destabilizing for kids. Additionally, if they have been out of the house for an extended time period, it can greatly impact your sense of privacy to have your spouse back in the home. After all, if a spouse believes they can move in and out whenever they wish, it can make your life, and those of your children, very unstable and unpredictable.
When they moved out they enjoyed privacy from you in their new residence. You have also come to expect privacy after they left. But, again, depending on all of the facts involved, including that both spouses have the right to stay in the family home during divorce, you may or may not be able to prevent them from moving back in.
What If Your Relationship Is Amicable?
Every marriage and relationship between divorcing parties is different. If your spouse left voluntarily but wants to move back in—perhaps for financial reasons or to be closer to children—and you have an amicable relationship, it might be okay for your situation. You can set up a roommate-type arrangement so everyone knows boundaries and protocols. You may wish to continue to live in the same house pending litigation (especially to conserve given attorneys fees) until there is a final resolution of your matter.
Reasons Spouses Move Out During Divorce
There are various reasons why a spouse may move out during a divorce. Here are some examples:
- A spouse had a restraining order filed against them.
- One spouse asked the other to move out.
- The spouse moved out to get space from the other spouse.
- One spouse had an affair and moved in with their new love interest.
- The spouses argued too much to live in the same residence and it was a peace of mind decision.
- The spouses had agreed to a trial separation to test the divorce waters and decided to divorce ultimately.
- The spouses had both agreed to live separately pending divorce.
- The divorce was filed on the grounds of separation for at least 18 months.
Every divorce case or family law matter involving a spouse who moved out wanting to come back is very fact specific. For example, if a spouse committed adultery and moved out to be with the new person and the other spouse filed for divorce, the judge may not be sympathetic to the spouse who had an affair, who now wants to move back because their new relationship did not work out and may grant an order preventing them from coming back. What rights you have and how a judge may decide will be based on all of the specific factors of your relationship and divorce and the grounds that you filed on.
Grounds for Divorce in New Jersey
Grounds for divorce in New Jersey include the following:
- Irreconcilable differences
- Separation for at least 18 months
- Adultery
- Desertion for 12 or more months
- Extreme physical or mental cruelty
- Addiction or habitual drunkenness
- Imprisonment for 18 or more consecutive months following marriage
- Deviant sexual conduct without the consent of the other spouse.
As you can see, there are many considerations as to whether a spouse can move back in during divorce, and what you may or may not be able to do to stop them. The same can be true of separation.
Can My Spouse Move Back in after Separation?
Again, it all depends on the circumstances. While New Jersey does not have a legal separation law as some states do, you may have negotiated a separation agreement with your spouse when you decided to separate, whether you were separating with the intent to divorce or not. If you have a valid agreement in place that addresses who will stay in the house and who will move out, you have leverage through that agreement for keeping your spouse out.
Without such an agreement you may have to get a court order from the judge to keep them out if they insist on moving back in.
However, if you and your spouse are divorcing based on separation grounds in New Jersey, you must live apart for at least 18 months for divorce to be granted.
Consider speaking with an attorney at Men’s & Fathers’ Rights Divorce Lawyers by Schultz & Associates, LLC if your spouse is trying to move back in after you have separated. Call us today at (201) 880-9770.
Risks of Moving out During Separation and Divorce
Even though it can sometimes be awkward and difficult to continue living with a spouse during divorce, it can also be risky to move out. Only you can decide whether you can continue living with your spouse in the same home as your marriage is ending. But it is wise to consider how moving out could impact you and potentially give your spouse the upper hand in divorce.
There may be implications when it comes to child custody. The parent who stayed in the home with the children could potentially be viewed as providing a more stable environment for the children, which may give them a custody advantage. However, judges look at a wide variety of factors so no one decision is determinative of an end result, but could make the process harder if you are seeking one outcome and you don’t have physical proximity to the children.
When you move out of your home, you could lose access to important documents that you may need as evidence during asset and debt division in divorce. It’s smart to make copies before you leave. Additionally, you are still going to be expected to help pay the mortgage, rent, utilities, and other bills, unless you have an agreement that says otherwise. You will also be paying to live in another residence, which could negatively impact you financially.
There are many things to think about if you decide to move out. There are also protections you may be able to put in place with the help of an attorney.
Get Help from An Experienced New Jersey Divorce Lawyer
Has your spouse moved out of the marital home in New Jersey during the divorce and now wants to move back in? What your rights are under these circumstances and what you may be able to do to prevent them from coming back will depend on your unique situation.
For experienced legal guidance, contact Men’s & Fathers’ Rights Divorce Lawyers by Schultz & Associates, LLL to arrange a case evaluation. We can also help you understand your rights if you were the spouse who left and now wants to move back.
Call us today at (201) 880-9770 or use our online form to discuss your situation and your legal options.
Carrie S. Schultz, Esq. – author
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