Legal Separation and Divorce are virtually the same in Wisconsin. They both legally end a marriage and the legal process is nearly identical for both. Therefore, this article applies equally to legal separations and divorces.
A question we often get shortly before or shortly after a divorce is filed is, “Can I change the locks on the house?” Sometimes, this is a strategic decision intended to seize the upper-hand by possessing and controlling access to the property. Other times, it is a safety decision fueled by a need to protect a spouse and their children or their property from damage or retribution by a disgruntled or violent spouse.
When and how you go about gaining exclusive use of your home and effectively forcing-out the other party will depend in large part on the reasons you need the other person out. There are typically two options for removing one party from their home while a divorce is pending, but “self-help” options such as changing the locks might be ineffective.
If you fall into the first category—that is, you want exclusive access to your home in order to preserve it and to ensure your spouse does not either create drama by coming and going unexpectedly or create issues by taking things from the home that you disagree with—then you should ask for “Temporary Orders.”
Temporary Orders are intended to determine how the parties will manage their affairs while a divorce is pending: When the parties will see their children; who will pay which bills; and who will get to continue living in the marital home.
However, sometimes courts refuse to make orders that force one party out of the home if there is not a legitimate threat of domestic violence and if there is no affordable and available alternative housing arrangement for the displaced spouse.
Family courts are obligated to try the best they can to preserve the marital estate. Therefore, they are not likely to force the parties to incur the additional cost of an apartment, moving expenses, and the cost of furnishings, etc. just because one party is “uncomfortable” continuing to live with a spouse while a divorce is pending.
If one party agrees to voluntarily move out, the courts will usually try to accommodate it by ensuring the party has enough money to support an additional household, but due to finances or other circumstances it is often impractical for parties to physically separate even if they want to. In such situations, the court will not force the parties apart and you will have to wait to change the locks until the divorce is finalized or the court awards you exclusive use of the home on a temporary basis.
If you fall into the second category and want to force your spouse out of the home because you are fearful of continuing to live together and believe there is a likelihood of domestic violence, you can seek a Restraining Order (called an “Injunction” in Wisconsin).
However, you typically cannot get a restraining order based upon hypothetical violence or threats of violence that have not yet occurred. Unfortunately, this means that if you are worried your spouse will react violently when you serve them with divorce papers, you cannot get a restraining order based on actions you merely anticipate. You can only get a restraining order based on actual violence or harassment or actual threats of violence or harassment.
If you succeed in getting a Temporary Injunction, it will prohibit your spouse from having contact with you or coming to your home while the temporary injunction is in effect (typically no more than two weeks). If the Temporary Injunction is extended to a Permanent Injunction after a hearing, it is possible your spouse will be prohibited from coming to your house (or any residence occupied by you) for a term of up to four years.
But if the Temporary or Permanent Injunctions are denied, your spouse will not be prohibited from coming to your home or occupying it with you.
If you argue at a temporary hearing that you want the other spouse out of the home due to domestic violence concerns, the commissioner will likely ask why you have not filed a restraining order. If you have not filed for a restraining order, or if you filed but it was denied, a court commissioner may be skeptical of your claims and may feel you are only making such claims in an effort to kick your spouse out of the home. In such situations, a request to force your spouse out of the home can backfire. The court may say that if you are concerned, YOU should move out.
As a general rule, it is not illegal to change the locks on a home that you own. However, if you and your spouse jointly own the home, that means it is also not illegal for him to change the locks back. If you change the locks on your home, your spouse may damage the home by breaking into it—this also is not illegal. You (or your spouse) are free to break the windows, pick the locks, or kick in the door of your own home.
If you do not own your residence—that is, if you rent or if a third party owns it (such as your parents), you typically cannot change the locks without the express permission of the property owner. Changing the locks without permission would likely be a violation of the terms of your lease and could leave you subject to financial penalties and even eviction.
If a third party (your parents or another family member) owns the home you live in, it is possible the property owner could force your spouse to vacate the property. However, depending on the circumstances, it is likely your spouse has rights and responsibilities as a tenant and that they cannot be summarily kicked out or denied access to the property without proper notice.
Even if the home is solely in your name and you are the one who solely pays the mortgage, if your spouse lives there, too, they have a marital property interest in the home and a right to be there. You have the right to change the locks—but so do they. You have a right to tell them to leave—but they have an equal right to tell you to leave. In Wisconsin, property titled in only one spouse’s name is still marital property.
If you are interested in learning more about how to peacefully and physically separate from your spouse call us for a 100% confidential consultation!
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