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Maybe. It depends on a few factors.
First, if you are a victim of domestic violence, then you can file a Motion for an Order of Protection. You must show that your spouse has either physically attacked you, threatened to attack you, or destroyed your property, and that you are currently afraid of him or her. If you prove these things at a hearing, conducted about two weeks after you file the petition, then you likely can get possession of the house. You will likely need to find somewhere safe to be (that is not your home) while you wait for your hearing.
Second, even if there is no domestic violence, if you allege “inappropriate marital conduct” as grounds for divorce, then you have a chance of getting your spouse out of the house. To do so, you will have to file a motion and get it heard. T.C.A. 36-4-101(11) defines inappropriate marital conduct as “cruel and inhuman treatment or conduct to the spouse as to render cohabitation unsafe or improper.” So, to get your spouse out, you’ll have to show that they did something really bad. Examples of “really bad” conduct that courts have found sufficient evidence to remove a spouse from a home include abusing alcohol or drugs, having an affair, falsely accusing your spouse of having an affair, and staying out all night without disclosing your location.
If both you and your spouse allege inappropriate marital conduct, then at least theoretically, one of you should have to move. The Court of Appeals says, “A judge need not substitute his or her opinion for that of the parties where…both parties have determined that the other spouse’s conduct has made cohabitation improper, unendurable, intolerable, or unacceptable to themselves,” Earls v. Earls 42 S.W.3d 877 (Tenn. Ct. App. 2000). In other words, if you both agree you can’t live together, then one of you is going to have to move.
So, which one of you is going to move? If you and your spouse do not agree, your lawyer may need to present that question to the Judge with a Motion for Exclusive Possession of the Marital Home. No statute helps us figure the answer to this question out, and there is relatively little case law on point. However, my experience suggests that Judges look at the following factors when determining whether one spouse, and which spouse, should have the marital home all to themselves:
· Who is going to be primarily responsible for the care of the children pending the divorce?
Judges do not want to disrupt a child’s routine and will typically award the marital home to whoever has been primarily responsible for the children’s care up until now.
· Who can make the mortgage payment?
Judges hate for one spouse to live in the home when s/he can’t afford to make the payment.
· Who has another place to stay?
If one of you has somewhere else you can go, such as staying with your parents or a sibling, and the other spouse does not, Judges are more likely to award possession to the person who has nowhere else to go.
· Is there a history of domestic violence?
This can go both ways. Courts don’t like to throw victims of domestic violence out of the house. However, on occasion, the Judge will worry about the abuser knowing where you are, for instance, if your residence is in an isolated location.
Moving is one of the biggest transitions in a divorce and is fraught with emotion. You will need guidance from your attorney to make a sensible decision about what to do with the marital home – whether to sell or keep and refinance, whether you should stay or go. As always, we are here to help. Give us a call at (865) 637-6550 to schedule a consultation to discuss your options.
