PRIOR TO THE DIVORCE DECREE

What does pendente lite mean?

This Latin phrase means "during the litigation". It refers to the time after divorce proceedings have been commenced but before a divorce decree has been obtained. A divorce decree is the court's final ruling and judgment order that makes the end of a marriage official. Many of the powers of the court in a divorce action, such as orders for maintenance, custody, child support and attorney and expected fees, can be exercised on a temporary basis while the divorce proceeding is pending, as well as pursuant to a final decree of divorce. Lawyers consider pendente lite orders to be crucial because the courts may tend to resist a change in the status quo once established, even though such orders are not binding on the trial court.

How can I make my spouse leave the marital home?

Generally speaking, without a protective order for domestic violence, an exclusion order by the court, or until a marriage is legally terminated, each spouse has the right to continue to reside in the marital home. Once divorce proceedings have been commenced, the court has the power to grant one spouse exclusive possession of the marital home. Exclusive possession means that one spouse may live in the marital home and occupy it for his or her sole use, regardless of whose name is on the title. The other party must vacate the marital home and cannot access it unless invited by the spouse, or by formal agreement or court order. This power will rarely be exercised against an unwilling spouse before the divorce is final, unless the spouse to be excluded is engaging in abusive behavior to either the other spouse or to dependents in the home.

You may obtain a protective order in the Family Court or Criminal Court for domestic violence. Domestic violence is grounds for an order of protection issued by a court and may be grounds for an order excluding a spouse from the marital home.

Am I hurting myself if I move out of the family home?

When marital assets include a home, there are several possibilities for its use and disposition (which may include sales, transfers and assignments) pending and after a divorce. When the marital home is the sole or main asset of the marriage, it may be sold after the divorce so that its value can be equitably distributed between the spouses. Sometimes, the sale of the home will be delayed to allow one party, particularly the custodial parent, to use the home until the children are grown or graduate from high school or college. When other more liquid assets also exist, in addition to the home, it might be appropriate for one party to receive the house as part of the property settlement.

If it is your objective to remain in the marital home either permanently or temporarily following the divorce, your lawyer may advise you against moving out, even if remaining in the home with an estranged spouse is causing emotional distress. This is not because any actual law prejudices the property rights of a spouse who chooses to leave the marital home during divorce proceedings. Instead, it is because many lawyers feel that the courts tend to uphold the status quo, so that the spouse in the home at the time of divorce proceedings obtains an advantage in achieving the goal of remaining there. In addition, the spouse who leaves the home may, as a practical matter, diminish the likelihood of obtaining sole custody. Often, the leaving spouse will demand a “non-abandonment” letter, which states that the spouse remaining in the home shall not assert such leaving as a ground for divorce. The letter may also state that the fact that one spouse left the home will not be construed as a waiver of custodial and access rights to the children.

My spouse and I have each engaged lawyers to pursue a divorce. Although my spouse is living elsewhere and has removed many of his belongings, he occasionally shows up at our house unannounced. Why is he doing this?

Often, on the advice of a spouse's lawyer or on her or his own initiative, a spouse who is living elsewhere and has removed belongings may occasionally appear at the marital home to strengthen a claim to the right to reside in the marital home or to demonstrate that he or she has a continuing interest in the welfare of the children residing in the home.

I am concerned that my spouse has access to my funds. What should I do?

Where the divorce is "amicable", it may be best to maintain the status quo on joint bank accounts and other assets until settlement is reached. However, if the divorce is bitterly contested and there is a reasonable expectation that a spouse will take or hide funds, you and your lawyer should discuss reasonable steps to prevent your loss of access to funds and other property.

Domestic Relations Law Section 236 (B)(2)(b) states that automatic restraining orders will be issued upon the commencement of an action for divorce. Issuing these automatic orders at the beginning of the divorce action aims to prevent both parties from dissolving assets, incurring unreasonable debts, or removing a spouse or children from health or life insurance policies. Additional restraining orders to freeze access to marital bank accounts, prevent the sale or transfer of property, or preserve electronic records may be obtained from the court.