My spouse wants me out. Do I lose rights to the house by leaving?

House and lawA prickly issue that may arise when parties separate is who gets to stay in the marital residence during the parties’ separation period. In Pennsylvania, both spouses have a right to be in and/or on a marital property that is owned or rented jointly by the parties. Generally, courts will not evict one party from the residence if the parties appear to be residing together peacefully, albeit separately. So the question arises, what happens if one party voluntarily vacates the residence?

Generally speaking, it is advisable to consult with a Pennsylvania divorce attorney and negotiate with a soon to be ex-spouse prior to vacating the marital residence. Vacating the marital residence prior to consulting with a divorce lawyer is not advisable as vacating the residence may have an impact upon child custody, child or spousal support, alimony pendente lite and alimony.

In the event the environment in the marital home is intolerable and one party must voluntarily vacate the residence, if both parties’ names are on the deed to the marital home, neither party will lose their equitable interest in the property if they vacate the home.

If one spouse voluntarily moves from the marital residence, they have a right to return to the marital residence at any time. There are only two types of orders through family court that can preclude a party from returning to the marital residence: a Protection From Abuse order due to some type of domestic violence or an order for exclusive possession or exclusive occupancy of the martial residence. In theory, courts in Pennsylvania are authorized by statute to award exclusive possession of a marital residence on an interim basis to either party pending equitable distribution. In practice, exclusive possession is most often awarded to the spouse who remains in the home while the other spouse voluntarily vacated. An order of exclusive possession does not preclude the court from ordering distribution of the marital residence to the vacating spouse in equitable distribution.

If either spouse is locked out of the marital residence without an appropriate order of court, the spouse locked out can take action to regain entry into the marital residence.

If a party voluntarily moves from the marital residence, they should only remove their personal belongings and clothing and those items that are agreed upon by the parties. The rest is considered marital and subject to equitable distribution. Finally, it is highly recommended that s/he photocopy all important documents before leaving the house and that s/he photograph or video the contents of the house before vacating.