You faced a difficult decision to separate from your wife. You arranged your life so that, after you broke the news to her, you could quietly slip away, out of her life for six months to a year before filing for divorce. You retreated to a tiny, dingy motel room unreliably lit by a single bare bulb swaying from a frayed cord drooping down from the center of the water-stained, popcorn stucco ceiling. You planned to leave her in peace; she in the luxurious three-bedroom, 2.5-bath Colonial home you are still paying a mortgage on; you, alone with your thoughts, lying on the motel room’s ancient mattress that smells faintly of ashtrays and desperation.
She did not take the separation well; you expected that. What’s this? You forgot your heart medicine and must return home! No problem; drive back and you can also snag the Popsicle® stick photo frame little Wesley made you in first grade. You time your return for when your wife will not be home and the kids will be out. But … but … your key no longer works! What goes on? She changed the locks! Can she do that?
Can You Go Back to the Marital Home During Separation?
In a Virginia separation (coming as it does before a divorce), the maximum occupancy of the marital home will drop by one — probably you. Your kids can stay; your spouse can probably stay. Under certain very strained circumstances you could stay, too. Usually, though, you will move out. The clock on the six-month or twelve-month separation does not start until, well, you two are physically separated.
Not until a court has adjudicated the fair disposition of all marital and separate property can your wife change locks, hire a security service, install surveillance cameras, dig a moat, and post guards on the watch towers. So long as you both legally own the house, if she changes the locks, you can break in and not be arrested for burgling your own house.
Respect the Separation and Set Some Boundaries
She gains no advantage escalating an emotional conflict by changing the locks. She may do it, and you may escalate, but neither of you will come out ahead. You will add tension to the proceedings and increase conflict when the time comes to divvy up the assets.
Instead of fueling an ongoing battle over the marital home, make a reasonable offer to check out pending completion of the separation and the divorce. Get everything in writing; have your attorney look over your wording (or have your attorney write it). In the agreement:
- Spell out that you are not ceding your legal rights to your marital home
- State how you will inform your wife any time you plan to return to the home
- State how you will both confirm any return you make to the marital home
The more you specify, the stronger your argument that you were diligent in respecting the separation: no interactions; no financial, emotional or practical support for each other; no sex; no food preparation. That all matters, so start building a strong track record of setting boundaries.
Track Your Activity during the Separation Period
Keep track of your comings and goings with a journal. Jot down when you returned to the family home, and for what reason. Note how you informed your estranged wife of your visit, and any comments relating to her or your children.
You have every right to attend events such as the backyard graduation party for little Zelda’s kindergarten graduation. You can also return to your marital home for picking up tools, finding important personal papers — anything you like! Note who was present to later testify or sign a deposition that you and your estranged wife stayed apart.
B and E or Room Key?
If your wife does change the locks, you can legally break into your own house to perform the normal home activities. If you break every window in the house, you can be arrested for vandalism or worse.
She may escalate with new locks (that gets pricey) or with additional barriers, but again, so long as you two have not signed a property settlement agreement and your name is on the title and deed (or lease), you can come and go (although the broken glass will begin to add up). A better solution is to have your attorney inform her by registered mail that you plan to continue your legal right to access the home you either already paid for or are paying. She might as well give you a key.
Don’t Forget about the Front Desk
The big imposing desk at the front of a Virginia courtroom is occupied by a judge, not a room clerk. The judge is not interested in hearing that she changed the locks and you cut up your hand breaking in. The judge wants to see the property settlement agreement that legally divides real estate and all other marital property.
Once you two have agreed on a property settlement, whatever the court decrees, you live with, even if it means you lose your house to her.
Suppose you do agree to give up claims to the marital home, in return for the lifetime membership to Westmoreland Berry Farm (See the skywalking goats!) Sounds like a fair deal, right? Anyway, once you sign off, and the court signs off, you cannot barge into the ol’ marital homestead anymore. She can change the locks and you cannot break in without repercussions.
The Divorce Attorneys for Men
We may not be much for room service, but we do know Virginia family law. Contact us at The Firm for Men, or call 757-383-9184, to speak with an attorney today. We can advise you on what your wife can and cannot do with your marital home, and politely remind you not to take the room towels when you use the pool.