During your Long Island divorce, a main area of concern for you and your spouse is likely the question of who gets to remain in the marital residence. The two of you may have purchased this home at the beginning of your marriage and resided there for years, or it may be a relatively new home you moved into after you had your children.
Whatever the case may be, you both feel a connection to the residence and neither is willing to voluntarily say it is no longer their home. Many clients who find themselves in situations such as this ask me if they may change the locks on the residence when their spouse is at work or otherwise out. In short, the answer is no, absent a few rare situations which are discussed below.
Why Can’t I Change the Locks?
The fact that I am telling you to refrain from changing your locks may seem odd to you as a homeowner. However, you are free to change the locks on the residence just as you always were. The catching point is that during a divorce most people’s intent behind doing so is to keep his or her spouse out, and that is what is not permitted. If you do decide to change the locks, you must give your spouse the new keys, therefore giving him or her access to the residence just as before.
When Am I Permitted to Change the Locks to Keep My Spouse Out?
While your divorce is pending, there are a limited number of circumstances in which one spouse is granted use of the marital residence to the exclusion of the other spouse.
- Your Spouse Abandoned the Marital Residence: The first such instance is if your spouse has voluntarily abandoned the marital residence and established a new residence. If your spouse took his or her belongings, furniture, and other personal effects and moved into an apartment 20 miles away seven months ago, you may have grounds for changing the locks and establishing the residence as your own, separate and apart from your spouse.
- A “Stay Away” Order of Protection: While situations which require Orders of Protection tend to be volatile and at times even dangerous, an Order of Protection can serve to keep your spouse out of the marital residence and away from you. In order to be granted Order of Protection your spouse must commit one of the qualifying family offenses, and you then must file the petition with the court. There are two types of orders of protection: a “refrain from” and a “stay away”. If you are granted a “refrain from” order of protection, your spouse must “refrain from” engaging in the behaviors listed in the order, however unless otherwise noted, he or she is still permitted to be in your immediate presence. On the other hand, a “stay away” order of protection provides that your spouse not come within a certain distance of you, and at times your children. If you are granted this type of order, it naturally follows that your spouse must vacate the marital residence and has no right to re-enter during the duration of the order. In such an instance, you may change the locks to prevent your spouse from entering. However, if the order of protection is only valid until a certain date, once that date comes, your spouse must be permitted to access the residence again.
- Temporary Exclusive Use and Occupancy of the Marital Residence: During the pendency of your litigated divorce, your Long Island Divorce Attorney may file what is called a pendente lite order to show cause. In other words, your attorney may file a motion asking for relief that will begin on the date the order is signed and continue until the final judgment of the case. When preparing these motions most Long Island Divorce Attorneys request that their client be granted exclusive use and occupancy of the marital residence. Although the divorce laws in New York provide for this type of relief, it is rarely granted by the courts. In order to grant one spouse exclusive use and occupancy of the marital residence, the court must find that continuing to allow both parties to reside in the marital residence would threaten the safety of persons or property. This is a hard standard to meet. Your divorce attorney will likely ask you about the specific facts and living conditions at home, and look to see what if anything may be useful to support your request.
The bottom line: do not resort to self-help. While locking your spouse out may seem like an attractive option, it will only work against you in court, as it may be seen as abandonment by lock-out, which then may provide your spouse with a counter-claim or additional grounds for divorce. Until a court rules otherwise or your spouse abandons you, both parties are entitled the same access to the marital residence as before. As always, be sure to speak to your divorce attorney about the specifics of your case.
Compassionate & Experienced Long Island Divorce Lawyers Can Help
The compassionate and experienced divorce attorneys at Hornberger Verbitsky, P.C. have years of experience helping couples resolve their marital residence issues. If you have questions, give us a call Contact us today at 631-923-1910 to schedule your free, no-obligation consultation with an experienced Long Island divorce attorney.
For more information about Property Division in your divorce, visit our Complete Guide to Dividing Property in Divorce.
