You’re ending your marriage. But he won’t leave. Can you make him?

 “Of course you can, even if it means getting a lawyer and calling the sheriff. But, usually, you can find out why he won't move out and come to an agreement. Sometimes it's financial. He sees the house as at least half his and won't relinquish it. That requires legal intervention. Sometimes is emotional,” said Tina B. Tessina, 64, a Palm Beach, Calif.-based psychotherapist and author of "The Commuter Marriage: Keep Your Relationship Close While You're Far Apart (Adams Media, April 2008)."   

“Emotionally, even though you have made it clear that you want him out, hanging around where he is not wanted is just how it is. The options are limited in his thinking. Either being alone, which is scary, or staying where he is. It’s sad, if you think about,” Tessina said. “Try to find out what he needs in order to get him out. If it’s to help him get an apartment and help him decorate it, then do it. Of course, you are enabling him, but you are enabling him to be gone and you are willing to do whatever you need to get him gone.”   

But not everyone agrees with the therapist. There are varying schools of legal thought about this topic, and most agree that in order to oust a spouse who doesn’t want to leave the marital home, drastic and what some consider unethical measures have to be employed. In fact, some lawyers don’t believe that anyone should budge until arrangements are laid out in a temporary agreement.       

“As a practitioner, I advise if there are children involved, that neither leave the marital home until there is a custody agreement in place. If you are looking to share custody, you don’t want the perception that you are ready to leave until everything is in place,” said Judy Poller, 49, partner and chair of the matrimonial department at Dreier LLP, a Manhattan-based law firm. Poller said that while issues such as these vary state to state, in New York one thing is clear.   

“You can’t get the spouse out of house unless you can prove there is some kind of danger,” she said. “You can get exclusive occupancy during a divorce but it is very difficult, emotionally and physically. The courts don’t like to kick people out of their houses.”    

She added when there are children involved and issues of custody and support in the balance, being forced to live under the same roof can sometimes have a sobering effect. “It is leverage. An incentive to work out the finances. Pressure that we have got to get this done so we can live apart.” But some argue that living together, even though it may be financially more equitable, can have some powerful negative effects on the children, even in the best of pending divorces.