Unlike many states, Maine does not stipulate a minimum separation period before a couple can file for divorce in the state—only a minimum 60-day waiting period between the filing of all the necessary divorce paperwork and the final hearing.
In practice, during this 60-day period (and often for a period before filing), many married couples live apart and separately.
This can be challenging practically and financially for families who are accustomed to sharing the family home and who may struggle to support two households. There is often a strong reluctance to move out of the family home.
But can you legally evict your spouse after initiating a separation in Maine or do you need to find another solution for living separately?
Let’s find out.
What is an eviction?
An eviction occurs when an individual is legally ordered to vacate a property. Generally speaking, this situation involves a property owner and a tenant or another individual unauthorized to occupy the property.
In a marriage, where the property may be co-owned, both partners may have contributed to the financing of the home, and families are involved, evictions are much rarer and far more difficult to arrange.
Even if the property is in one spouse’s name or the other spouse hasn’t directly contributed to its financing, eviction would require a court ruling that the individual must vacate the premises.
For this, there must be a valid legal reason for the eviction. Otherwise, he/she may still be legally permitted to reside in the home during the separation period—even if living together makes the day-to-day situation in the marriage worse.
When is it possible to evict a spouse from the home in Maine?
If a couple finds itself in either of the following situations, one spouse may be able to get a court order that evicts the other spouse from the marital home:
- If there is evidence of domestic violence or abuse: proof of regular domestic violence or abuse against a spouse or the children is the most compelling case for the eviction of a spouse in Maine. In such cases, the safety of the family takes priority over the property rights of the offending spouse and a temporary restraining or protective order (commonly referred to in Maine as a PFA) should be sought from the court.
- If the marital home is not considered part of the marital estate: usually, the marital home is considered part of the marital estate. In some limited circumstances (for instance, if the spouse can prove that the home was brought into the marriage as an inheritance or gift), the home may be considered separate property that is not subject to division during a divorce, potentially making it easier to evict the other spouse. With that said, because an injunction goes into place during the filing of a divorce, it is highly unlikely an eviction would ever be considered while the divorce is pending in family court.
What community property and common law issues apply when evicting a spouse?
Maine is an “equitable distribution” state. This means that it uses the common law during property division, with marital assets divided as fairly as possible.
This is different from “community property” states, where marital property is divided strictly down the middle.
In the absence of any domestic abuse or PFA issues, a Maine court must be satisfied that the eviction is in line with the state’s property laws as they apply to separations and divorces. This usually means that at least one of the following applies for an eviction of a spouse to be approved:
- The spouse seeking eviction purchased the house before the couple’s marriage
- The spouse inherited or was gifted the property through a relative’s will
- The spouse is listed alone on the deed to the marital home
- The home was purchased with funds directly from the spouse’s bank account
Otherwise, there may be no legal grounds for a judge to order an eviction. The court may also consider the following details when considering equitable distribution matters:
- How long the couple has been married
- The income and potential future earnings of each spouse
- The standard of living maintained during the marriage
- The age and health condition of each spouse
- The financial and other contributions by each spouse during the marriage
How do you evict a spouse during separation in Maine?
The best way for a spouse to be removed from the family home is to agree to the move without the need for any other measures. Try to talk the situation through calmly and reasonably. Some couples agree to compromise and do the best thing for the children from the start of the separation process—and this can avert the need for legal action.
One spouse moving out of the family home may also be the best way to salvage a relationship as living together can make the situation worse for some couples (and their children).
If calm discussions fail to resolve the situation, to evict a spouse from the marital home under Maine law, you will need to file a request for a temporary order to vacate the marital premises with the local family court.
If the legal grounds for doing so involve domestic violence, applying for an emergency protective order will be the first step—a temporary move until a longer-term order can be issued and the offending spouse is ordered to stay away from the family home.
You may also be able to file a motion for exclusive use of the marital home, which amounts to the same result. If granted, the petitioning spouse is allowed to occupy the marital home until the couple’s divorce is finalized.
Any temporary decisions made by the court during the separation process and when filing for divorce do not guarantee a permanent ruling to the same effect after the divorce is finalized. There is a chance that an evicted spouse has his/her rights to the marital property restored after the divorce.
You may need to discuss this with a qualified Maine divorce lawyer, who will be able to advise you on whether this is the right step and how best to proceed according to your precise circumstances.
Do you need an attorney to evict a spouse during separation?
It’s often advisable for a divorcing couple to hire independent legal advice before settling key divorce matters. If you are considering applying to the court to evict a spouse from the marital home, the petition process can be made more effective with the help of a suitably qualified divorce lawyer.
Your attorney will be able to assess your legal position, inform you of the applicable eviction laws in Maine, and confirm your rights and obligations throughout the separation and divorce.
If you decide to pursue the eviction of your spouse, your lawyer will help you submit the correct legal documentation to the court and follow up as appropriate, as well as provide necessary representation during any court hearings.
Your divorce attorney can also help you resolve other key aspects of your divorce case, such as child custody/support, spousal support/alimony, and property/debt division.
Do you need help during a divorce in Maine?
If you need assistance during a divorce in Maine, speak to an experienced family law attorney at The Maine Divorce Group during an initial consultation.