If Your Spouse Says "Get Out" You Should Say "No"

Welcome to my legal blog.  If you want to learn about the blog itself, please click on "About this Blog" on the top.  Before you read, I always advise that you review my disclaimer, which you can do by clicking at the link on the top of the page, or following this link.

Introduction

We've all seen it on TV - the definitive moment a marriage has broken down - the husband comes home from work one day (it seems to always be the husband on TV) only to find his bags packed and sitting outside the door with a note from his wife telling him to leave and never come back.  The reality, however, is that situations like this occur more often than we realize (and it is certainly not always the husband on the receiving end), and most people, not understanding their rights, simply go along with it.

I long ago determined that one of my missions in life is to disabuse people of the notion that if your spouse says "get out," you have to do so.  In fact, this point is so important that not only will this be my first blog post, but I will probably repeat this post again a few times in the future.

The Law

The reality is that in Virginia, if you are married, both spouses have equal rights to the marital residence.  Your spouse is the only one with their name on the title?  Doesn't matter.  The house was purchased by your spouse before you got married?  Doesn't matter.  If this house is the home that you last lived in as husband and wife prior to a separation, you are allowed to stay there no matter what the title says or when the home was purchased.  Your spouse can threaten to call the police all that he or she wants, you are not tresspassing, you will not be taken away.

What You Should Do

If your spouse tells you to get out, your answer should be "no."  That's it.  No ifs, ands or buts.  The reality is, if you want any chance of being awarded the house in a future divorce action, you need to be the one who stayed in the house.  I don't care how angry the other spouse gets - do not leave the house just because your spouse says so.

This actually goes a step further.  If you have to leave temporarily for whatever reason, and your spouse changes the locks, you are within your rights to break in.  You can change the locks back if you wish, or change the locks to keep your spouse out.  As long as you retain your right to the property, your spouse just cannot kick you out.

Exceptions

As with any legal rule, however, there are exceptions.  There are three situations I can think of in which you do have to leave the house:

1)  A court order - While most judges will resist ordering one party or the other to leave, some will issue that order early on in a divorce process.  Moreover, if you stay in the house through the final divorce decree, and then the court awards the house to your spouse, you will then have to leave the house.

2)  You assault your spouse - If you assault your spouse, game over.  Once you are arrested, or a protective order is entered against you, you must leave the house, and you will likely be unable to approach your spouse for some time.

3)  You fear for your own safety - If you fear for your safety but don't think you can get a protective order against your spouse, it is probably worth leaving.  While you can raise this argument to try to keep your house in a future negotiation or divorce case, even if that argument fails is a piece of property really worth your life?  If you are concerned about your own safety if you remain in the house, then I do recommend going ahead and leaving.

Children

As with any situation in a marriage break-up, the presence of children adds an additional complicating factor.  Just because you and your spouse are breaking up does not mean your children should have be hoisted from their home and have their lives ruined.  If you want custody of your children, then you absolutely better make sure you stay in the home with them.  If you agree your spouse should have custody, then this would be a fourth exception - you should probably be the one who leaves.  Finally, if you are leaving because of the third exception above (that you fear for your safety), are you really sure it's safe to leave your children with your spouse?  In that case, I recommend bringing the children with you.

Remember, no parent has default custody in Virginia, and unless there is a court order to the contrary, either parent may bring the children with them wherever they want to go, whenever they want to go.  Just know that disappearing without telling your spouse where you have gone, and then withholding the children from your spouse, can very easily lead to an emergency custody order that you may not like - so be reasonable as best you can.

Closing Remarks

A single blog post cannot cover all situations that may arise.  As a result, if your marriage is breaking down and your spouse is telling you to get out, I would advise you to consult with an attorney.  Obviously I would love to offer my own services, and those of the firm I work for, The Baldwin Law Firm, but if you have an attorney you prefer, you can certainly see them.  If you would like to set up a consultation with us, you should call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com.  Your initial consultation with us will be free for up to 30 minutes.