At the start of a divorce, emotions are often high and one spouse may want the other excluded from the home they once shared. When I first meet with clients, I let them know that this will not typically occur right away without evidence that domestic abuse has occurred, as defined under Minn. Stat. § 518B.01, subd. 2.a., which states:
“Domestic abuse” means the following, if committed against a family or household member by a family or household member:
- physical harm, bodily injury, or assault;
- the infliction of fear of imminent physical harm, bodily injury, or assault; or
- terroristic threats, within the meaning of section 609.713, subdivision 1; criminal sexual conduct, within the meaning of section 609.342, 609.343, 609.344, 609.345, or 609.3451; or interference with an emergency call within the meaning of section 609.78, subdivision 2.
What legal options are available?
A party could attempt to get a Harassment Restraining Order (HRO); however, in my experience, in an on-going divorce situation, it is very difficult to convince a Court that harassment, as defined in Minn. § Stat. 609.748., has occurred. Courts understand that couples getting a divorce sometimes do not say nice things to one another, therefore there has to be a substantial showing to the Court before the Court would consider issuing an HRO.
Without an agreement between the two parties that one of the two will leave the home, a Court Order would be needed to exclude the responding party from the home. If the parties do not agree about one of the parties leaving the marital homestead, a party could attempt to raise the request that one of the parties being Ordered to leave the home through a temporary motion.
Temporary motions are very costly, both financially and emotionally, as the paperwork that is done for the hearing and time the attorney prepares for and argues at the hearing is extremely expensive. Often, the allegations set forth in the temporary paperwork can cause the parties to raise extremely negative things about the other, causing the likelihood of later settlement to decrease.
Also, most Courts will want the parties to attempt settlement before scheduling a temporary motion. Absent a temporary hearing, and/or agreement of the parties, the parties may need to wait until a final decision is made by the Court to see who is awarded the home and who is excluded.
What you can do
Excluding a party from the home is a difficult process, and one that the Court does not take lightly, especially if children are involved and both the parents are in the home at the initiation of the divorce. If you would like to talk about the options open to you, each of the attorneys at Clausen & Hassan are ready to assist you in taking on this challenge. The first steps can be hard and the path ahead may not get any easier, yet I know from experience that those who have come to me have not only made it through, but embarked upon a new chapter in their lives.