Wednesday, January 5, 2011

In Maryland, Can You Force Your Spouse to Leave the Marital Home?

One of the most common questions I am asked by clients and prospective clients is whether they can force their spouse to leave the marital home. Generally, the answer is “no,” assuming that the spouse who they want to force from the home is on title to the house or the lease.

An exception to this general rule is if a protective order is issued by the Circuit or District Court that compels the spouse to vacate the property. Protective orders are commonly issued if one spouse assaults or threatens the other. A protective order forcing a party to leave the home may be issued if an assault “in any degree” has occurred. A protective order was once issued against one of my clients because he spat on his wife. That constituted assault.

Because many people know that the only way to get their spouse out of the house is by issuance of a protective order, these orders are sometimes sought and used by parties in a strategic manner. Thus, I always warn clients about this potential and counsel them not to do anything stupid. If you believe your spouse is picking a fight or is trying to induce you to do something to get you removed from your home, walk away and leave the situation. Do not verbally threaten your spouse, do not put them in fear for their safety and do not touch them in any manner. Such actions could result in issuance of a protective order and get you removed from your house. (On the flip side, if your spouse assaults or threatens to harm you, call the police immediately and, if appropriate, consider obtaining a protective order against him or her.)

Many people whose spouse will not leave the home are concerned about the effect of their leaving the house in a subsequent divorce action. They are concerned that their spouse will file for divorce on the basis of desertion or abandonment. This concern is generally unfounded and the fact that one spouse left the marital home will generally not be used as a factor against him or her in a subsequent divorce action. Judges are aware that someone typically has to leave the house in order to end a marriage in Maryland and do not hold the fact that they left the home against them. What I often have clients do who are concerned about this is write their spouse a letter, stating that they are going to move out of the house, because he or she has refused to do so.

If you want your spouse to leave the marital home, ask them to. If they refuse, you will need to consider your other options.

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