In New York, an individual cannot treat their spouse like a tenant and evict them from their family home. The process of evicting a spouse during separation or divorce is a matter that is governed by New York family law and not the law of eviction.
A person who feels that they need to remove their spouse from their residence would benefit from a legal consultation in New York with a New York lawyer. Their lawyer could explain to them what their options are under New York law.
The existence of the marital relationship means that both spouses may well have shared rights to the home. For this reason, arranging for a spouse to move out of the home during marital separation or divorce requires a court order, which is obtained through specific legal processes within the family court system.
An individual must obtain a court order to compel their spouse to vacate a home they have shared during their marriage. The spouse who is seeking the departure of the other spouse must present the court with valid reasons for the request, such as the other spouse’s domestic violence or the fact that the other spouse poses a significant threat to their safety and well-being or that of their children.
When Is It Possible To Evict My Spouse From Our New York Home?
It is possible to arrange to have a spouse leave a couple’s shared home in New York. A person must have an active family law case, which means an action for divorce, legal separation or annulment. A person can begin a family law action by filing a petition in a New York Supreme Court.
If no petition for separation or divorce has been filed, a court does not have the authority to issue an order directing a spouse to vacate the family home. There is an exception in emergency situations that involve domestic violence.
A request for an order directing a spouse to leave is a motion filed within the larger family law case. Courts in New York generally do not order someone to leave their own home unless they are a danger to their spouse and/or children.
New York domestic relations law does, however, grant this type of relief if it appears to be necessary to avoid harmful marital or domestic conflict. When making a decision, a court considers such factors as the following:
- The emotional consequence of the spouses continuing to live in the same residence
- Whether the parties have any alternative housing options
- The willingness of either of the spouses to voluntarily pursue alternatives.
One spouse usually asks for an order directing the other spouse to depart as part of a divorce proceeding. This spouse needs to have a stronger reason for the court to make such an order than the fact that the spouses no longer get along or that the other spouse is conducting themselves in an unreasonable manner.
A court may consider whether one spouse is trying to give themselves an edge in a custody dispute because they can claim that they reside in the family home.
A court applies a legal standard which is that the presence of both spouses in the family home is causing emotional distress or domestic strife that has a negative effect on one spouse and/or their child. The spouse seeking the eviction of the other would need to describe exactly how the environment is divisive. They would also need to explain how giving them sole occupancy would restore domestic peace and stability.
The court’s order at this point would be temporary only and would not have any effect on the community property interest of either spouse in the home. Again, the final division of community property would be determined later. If one spouse is given exclusive use, they would also acquire a fiduciary duty to preserve and maintain the property.
They might well have to make mortgage payments if ordered to do so. Of course, the court could order both spouses to contribute to the cost of paying the mortgage and maintaining the property.
Again, what would happen to the house after a separation, divorce or annulment is final would be decided in the main case. Or the spouses might be able to come to an agreement on the issue.
In the event of abuse, however, one spouse may be evicted even if the home is community property. The best way to go about removing an abusive spouse from the home during divorce proceedings, or at any other time, is by asking the court for an order of protection, otherwise known as a restraining order.
The restraining order process starts by filing for a temporary restraining order (TRO). If one spouse urgently needs to remove their spouse from their home because they present a danger to life or limb, they apply for an emergency protective order (ERO). Or law enforcement officers who may have responded to a domestic violence call or received a domestic violence complaint may apply for a protective order.
Whether the order is a TRO or an ERO, any court order that restricts contact between a violent spouse and the other spouse means that the violent spouse cannot enter or even come within the vicinity of their victimized spouse.
What Issues Are There in Connection With Community Property and Common Law in New York?
New York is not a community property state. Rather, in divorce and separation, New York courts apply the theory of equitable distribution. In New York, each spouse owns the income they earn during the marriage as their separate property. Each spouse also has the right to manage the property that is in their name. In divorce or separation, each spouse does not get half of the assets and debt from the marriage.
Rather, courts distribute marital property fairly and equitably between the two spouses. A court takes a number of factors into account in deciding how to divide marital property and debt. The division of property may be more complicated than in a community property state.
While the divorce or legal separation is pending, if one spouse resides in the home that is marital property, they would have a legal obligation to maintain the property until a final disposition of it is made.
In New York, What Are the Steps To Evicting a Spouse During Separation?
As noted above, one spouse usually asks for an order directing the other spouse to depart as part of a divorce or legal separation proceeding. This spouse needs to have a good reason for the court to make such an order. The fact that the spouses do not get along amicably is not a sufficient reason.
Another option is to negotiate a resolution of the issue. An individual who seeks a divorce or legal separation may want to hire a New York attorney, and their attorney may be able to negotiate with the other spouse. At some point, one or the other spouse has to leave the residence at least temporarily, so starting from that point, a spouse’s attorney may be able to get the other spouse’s agreement to an arrangement that could work for both.
Other options would be alternative dispute resolution, such as mediation or collaborative divorce. This could provide solutions that work not only for the residence issue, but for other issues that may come up in a divorce as well.
If a person has been a victim of domestic violence, they may go to court to get an “Order of Protection” immediately. This will prevent the spouse who has perpetrated domestic violence from entering the property and order their compliance with certain requirements, such as staying away from the victimized spouse and their children. In addition, the order could require the spouse who has been violent to pay child support and to refrain from owning a gun.
It is a crime to violate both a temporary and a final protection order, so if an individual’s spouse does violate such an order, the spouse who is protected by the order may call the police and report it.
Should I Discuss Evicting a Spouse During Separation With an Attorney in New York?
If you want your spouse to leave the house you have shared during your marriage, whether to ensure that you are safe or because their presence causes emotionally damaging levels of discord, you need to consult a New York family law attorney. Your attorney can review the facts of your situation and identify the options you have, including possibly negotiation of a solution.
