As divorce attorneys in New Jersey, we are often asked by clients whether a spouse can move back into the marital home while the divorce is pending after already having moved out. There is no guarantee that the Court will restrain a spouse from returning to the marital home to reside after vacating the house absent an act of domestic violence. However, the spouse that has remained in the marital home is not out of luck. He or she has the legal right to seek to prevent the other spouse from returning.
The Family Law Courts in New Jersey have confirmed that it has broad and equitable power to restrain and enjoin a spouse from returning to the marital home. Degenaars v. Degenaars, 186 N.J. Super. 233 (Ch. Div. 1982), (citing Roberts v. Roberts, 106 N.J. Super 108 (Ch.Div. 1969)). The question presented in Degenaars was whether a court of equity can order a spouse who previously moved out of the marital home voluntarily and maintained a separate residence for a “considerable period of time” to remain out of the marital home over his objection with no definitive evidence of danger of actual emotional or physical injury to the spouse and children. In this matter, a Complaint for Divorce was filed on September 29, 1980 while both parties resided in the marital home. Id. In January of 1981, the husband voluntarily vacated the marital home. Id. On June 28, 1982, the husband moved back into the marital home without prior advance notice. Id. The wife immediately filed an order to show cause which was entered by the Court enjoining the husband from “remaining upon the former marital residence.” Id.
The Court specifically acknowledged that defendant had moved out of the marital home for approximately seventeen months. The Court considered the following:
Should the mental and emotional health and welfare of plaintiff and the children be compromised by the ever-present knowledge that defendant can move in, out and about the marital home with impunity? We think not.
The Court in Degenaars concluded that:
This court finds that it would be inimical to the best interest and welfare of plaintiff and the children to permit their lives, both emotionally and physically, to be traumatically invaded by defendant’s unilateral decision to resume residency in the marital home. The interests and welfare of plaintiff and the children will best be served by maintaining the status quo ante as initiated by defendant himself. This court finds that it has the power and jurisdiction, both by legislative fiat and by invoking the historical equitable jurisdiction inherently possessed by this court, to grant the relief sought.
Id. Thus, the Court restrained and enjoined the husband from entering or remaining in the marital home.
This area of family law is extremely subjective and fact sensitive. Do you believe you have an expectation of privacy once your spouse leaves marital home? Are you concerned about the well-being and stability of your children? Are you considering leaving the marital home temporarily and are worried that your spouse will prevent you from returning? If you have a question about whether your spouse can return to the marital home or you have left the marital home and are wondering if you can return, contact the attorneys at Donahue, Hagan, Klein & Weisberg, LLC for a consultation. We are Family Court lawyers located in Morristown, New Jersey. Our experienced attorneys will be happy to discuss this process with you.