Orders to Vacate the Marital Home

Photo of Jeffrey A. Soilson

In many divorce cases, when one party tells the other that the marriage has irretrievably broken down and there is no chance of reconciliation, the other party will voluntarily vacate the marital home. Often the primary caretaker of the minor children remains in the marital home with the minor children, and the other party moves out voluntarily to establish a second household in contemplation of engaging in a parenting plan that is in the best interests of the minor children. But what happens when the other party does not voluntarily vacate? What recourse is available to the requesting party to ask a Judge to intervene and issue to the opposing party orders to vacate the marital home?

Although there is a significant evidentiary burden to meet in cases like this, a burden often met through a sworn affidavit and/or oral testimony submitted to the Probate & Family Court judge in support of a Motion requesting Orders to Vacate the Marital Home, there is a statute on the books that provides us with some guidance. M.G.L. Chapter 208, Section 34B gives the Probate & Family Court judge statutory authority to order the husband or wife to vacate the marital home for a period not exceeding 90 days (with the possibility of that initial period being extended upon further motion). The Judge much must hold a hearing on the issue, and enter specific findings upon listening to and reading the evidence that the “health, safety or welfare of the moving party or any minor children residing with the parties would be endangered or substantially impaired by failure to enter such an order.”

Under normal circumstances, the opposing party must be given three days notice of a hearing on a Motion to Vacate, and that person is given an opportunity to appear either in person or by his attorney to oppose the Motion. Under emergency circumstances, however, if the moving party can demonstrate a substantial likelihood of immediate danger to his or her health, safety or welfare, or to that of the minor children involved, the Judge can enter an emergency order without prior notice to the opposing party.

In practice, more often than not, once the opposing party is removed under an Order to Vacate, he or she will likely establish a second household during the initial 90-day period. Notwithstanding what ordinarily occurs in practice, there are many cases where an individual is allowed back into the marital home, especially when there is new evidence presented to the Judge, or when there are changes in circumstances, such as financial constraints and an inability to set up a second household in order to engage in parenting, that must be considered. What often results is the forced sharing of the marital home, or a nesting arrangement, which often leads to further contested litigation, and a high level of conflict between the parties. It can also create unnecessary stress and anxiety for the parties’ minor children.


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