By Cynthia Weiss Stein

Living together in the marital home during separation can be uncomfortable, but in many cases, there is a strategic reason for both spouses to stay. Moving out of the marital home without the children may place the vacating spouse at a disadvantage with regard to custody or trigger a support obligation for child support and spousal support. Additionally, for many families, the financial burden of running two homes may be an obstacle. For separated spouses, living in the same house can be miserable. They feel trapped and unable to move forward with their lives.  Thus, clients often want to know if they can force their spouse to move or change the locks. 

In Pennsylvania, you need a court order to force your spouse to leave. If you change the locks without an order, your spouse can regain entry, and may even be permitted to break in to do it.  However, there are mechanisms that can be employed if you seek to evict your spouse from the marital home.

Protection from Abuse

A Protection from Abuse (PFA) Order is available under certain specific circumstances stated in detail at 23 Pa.C.S.A. § 6101, et. seq.  Some of the grounds for a PFA are if your spouse has intentionally or recklessly caused you bodily injury, placed you in imminent fear of serious bodily harm, falsely imprisoned you, or committed any of these acts upon your children living in the house. You should consult a lawyer about obtaining a PFA Order and evicting your spouse from your residence.

Exclusive Possession

An order granting exclusive possession of the marital home to one spouse and excluding the other from entering is available in some situations. If a divorce action is pending, a party may file a petition for special relief seeking to force the other party to move. Under 23 Pa.C.S. § 3502(c), “the court may award, during the pendency of the action or otherwise, to one or both of the parties the right to reside in the marital residence.” In making this determination, the court will consider many factors, such as the economic realities of whether the parties can sustain separate housing, the behavior of the parties prior to the request, and the impact on the parties’ children of the proposed change.

Negotiate Agreement

In many cases, it is possible to negotiate an agreement under which your spouse will voluntarily depart. Negotiation may resolve the legal and/or financial issues that are causing your spouse to stay. Negotiation may also promote agreement as to interim custody schedules, support, and other financial issues pending divorce that make the transition easier.  In order to make sure your agreement is enforceable, you should seek legal counsel to help negotiate and draft an agreement or an agreed order. Some parties even sign pre-nuptial agreements before they marry in which they agree who will vacate the home in the event of separation.

What to Do If You Are Locked Out and There Is No Court Order Requiring You to Vacate

Call your local police. Sometimes local police will help neutralize the situation and help you regain access or at least obtain your personal belongings from the house while you seek legal counsel.

Call your lawyer (or hire one) to file a petition with the court in your divorce matter to regain entry and possibly even file for exclusive possession against your spouse.

Negotiate agreement. Talk with your spouse and see if an agreement can be reached that both of you will stay in the house for a period of time to allow you both to move on reasonably and peacefully. Reaching an agreement is generally a cost-effective and less stressful method of resolving these issues, but it does require two sides acting reasonably, so sometimes it is necessary to seek relief from the courts. 

Consult a Lawyer

A lawyer can obtain the critical facts from you and recommend the appropriate legal theory to protect your ability to stay in the house, have your spouse vacate the house, or separate without the necessity of petitioning the court. 

The divorce and family law attorneys of Shemtob Draganosky Taylor can guide you through all of your divorce matters including PFA, Exclusive Possession, or negotiating interim agreements. Call our family lawyers in Montgomery County at 215-542-2105 for a confidential discussion.

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