(See also Negative Equity and Divorce)
The court has the ability to grant “exclusive possession” of the marital residence to one of the parties while the divorce proceedings are still in progress. This means that the evicted party cannot enter the house without the permission of the occupant and can literally be arrested for trespassing. That also means you cannot enter and take any of your possessions from the house.
According to this article in the Las Vegas Review Journal, fewer than 20% of motions for exclusive possession are denied. Meaning you have an 80%+ chance of being evicted from your own home should a motion for exclusive possession be filed against you.
One of the judges in the article cites three grounds for allowing divorcing couples to stay in the marital home: 1) lack of financial resources to establish two separate households 2) the best interests of the children and 3) no history of domestic violence.
So the judge has given clear guidance on how to stay in your home:
1) demonstrate a lack of resources to establish a second household (which is why lawyers tell you NOT to move out of the home – I guess this would even extend to staying temporarily at a family or friend’s home),
2) demonstrate it is in the best interest of your kids to stay home (can be tough to prove – expect her to argue that the tension you both living under the same roof is psychologically damaging the children)
3) avoid a domestic violence charge (another tough one – there are numerous cases of false domestic violence charges AND judges erring on the side of caution even without physical evidence of any abuse – see this link for a wake up call).
(Of course, when the divorce is finalized you will need to give half of your equity in the house to your ex-spouse – this might entail selling the house or, if you are very lucky, you might be able to re-finance the house and buy out her equity – if you ever agree on what the equity is worth).
In my case, I had moved out of the house to escape constant verbal abuse and had rented a single room in a friend’s house. Not only did the judge award exclusive possession to my soon to be ex-wife but also ordered me to continue paying all mortgage and utility payments as well as child support. The judge also refused to order my ex to get a job – despite the fact that the children were teenagers and she had a teaching license. My ex ended up living in the house for almost 3 years rent free without any bills while collecting child support and taking up to 90% of my net income every month. Welcome to the “justice” system. (BTW, she also made it difficult for realtors to show the house to potential buyers – even when the court ordered that the house be placed on the market).