Tuesday, 06 April 2010 05:13

Divorce issues: Locking your spouse out of the marriage.

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Divorce issues: Locking your spouse out of the marital residence

One of the questions most frequently asked by parties going through a divorce is if they can change the locks to their home in order to "lock-out" the other party. Parties contemplating such action typically want to deprive the other of access to the home for one of two reasons: either they can no longer tolerate the other party's presence in the home or they are fearful that a spouse who has already moved from the home will reenter the residence in order to harass or abuse them or to remove furniture or other valuable items.

The easy answer to the question is, provided that the residence is a marital asset, either spouse can change the lock at any time. This does not, however, mean that they will be able to keep the other party out. Because both parties have equal rights to the property, the party who has been locked out will be within his or her rights to demand reentry to the property or resort to self-help measures such as breaking a window or picking the lock. Although you can call the police to document any damage to the property caused by the other party gaining reentry, police typically refuse to take any action against that party simply because he or she has equal rights to the residence, and as a property owner, is within his or her rights to reenter the residence.

If you want to exclude your spouse from your home, you should obtain an order of exclusive use and possession from the Court. When awarded, such orders will not only enable you to change the locks to your home but will forbid the other party from gaining reentry. If he or she does so, they will be breaking an Order of the Court. Unlike situations where there is no order of exclusive use and possession, police departments can and often will enforce such orders.

If your spouse has established another residence, you have what is call de facto exclusive use and possession of the property. In order to prevent the other party from reentering the property, however, you must still obtain an order of exclusive use and possession from the Court. When granted, this order will allow that party to remain in the home to the exclusion of the other party.

If your spouse has not established another residence, Courts may still award exclusive use and possession. In cases involving domestic violence or other abuse, it is not unusual to see Orders being issued that specifically grant a party exclusive use or possession or that, as part of an Order of Protection, direct the other party to stay away from the home. In such situations, you would be within your rights to change the locks.

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