Social Distancing in a Divorce: Who Gets the Home?

Virus mask protecting house.

Court-Enforced Social Distancing?

We may see it sooner rather than later, and not the way you might expect. An 81 year old New York woman recently filed a motion asking the Court to ban her estranged (and soon-to-be-ex) husband from returning to their home after a stay in a rehabilitation center. 

The husband, Irving Stein, is insisting he will return home to finish out his recovery following surgery and rehab. Rhonda Stein, who won’t even allow her children to see her during the pandemic, is not willing to let that happen. 

She is arguing that his hospital stay plus any healthcare aides who might be needed increase her risk of exposure to Covid-19, and given her reported underlying health issues, put her health at greater risk. Ms. Stein also alludes to her husband’s alcoholism as another justification to keep him out of the home when he can afford to stay elsewhere.

No response has been filled yet and it doesn’t look like the matter has been set for a hearing yet. 

The general consensus among domestic relations attorneys is that that most motions trying to ban or control the other party’s behavior based upon Covid-19 fears are not going to get very far in the courts right now. Attorneys all over Colorado have been inundated with calls from frantic clients about parenting time and exchanges, only to tell the concerned parents they must follow court orders absent agreement or modification from the court.

But this motion seems to be as novel as Covid-19, and it will be interesting to see how the New York court handles this Covid-19 argument. Perhaps this is just the first of many pandemic related filings to keep a spouse out of the house? Given that the death toll in New York is already over 13,000, this argument might resonate more in New York than anywhere else in the county right now.  

Who Gets The House In A Divorce Anyway?

While we cannot speak for New York, Rhonda Stein’s motion would likely not get very far in a Colorado divorce case, but it is possible in some circumstances to keep one spouse out of the house. Generally speaking, unless a restraining order is in place or there is other good cause, Colorado judges are reluctant to issue emergency orders excluding a spouse from the marital home. At a temporary orders hearing, the court may hear evidence as to which spouse should live in a house temporarily while the divorce is proceeding, but those hearings happen months after the case starts, and afford both spouses due process.

The most common justification for removing once spouse is domestic violence and safety concerns. If there are credible allegations of abuse to a spouse or children, a judge may require that the abuser move out of the marital home for the protection of those still living there. 

If there is not a restraining order, parties can agree to a no contact agreement through a divorce case which can require that one spouse move out of the marital residence. A no contact agreement  is essentially a contract between the parties that is filed with the court, and since it is an agreement, it can contain any number of provisions from no facebook contact to prohibiting visits to places frequented by the other spouse.

One spouse can ask the court for temporary exclusive possession of the marital home but there must be good reason for it. Just to be clear – not getting along with a spouse, a common problem in many divorces, is not a good enough reason to force one person out of the marital home. And without more, a spouse trying to eject the other simply because they do not get along might find himself or herself out of luck instead!

The question will come down to is Covid-19 a good enough reason to ban or remove one spouse from the marital home? Only time will tell as we wait for courts all over to start issuing orders on pandemic related motions to give us some additional guidance.

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