Divorce and the Lockout/Martin Rosenfeld, JD

Posted on June 20, 2015


As a divorce mediator, I advocate for peaceful means of resolving disputes. Unfortunately, divorce is an area in which a search for civil avenues of resolution is not always given primacy. However, even in the area of mediation, it is often true that not all problems have a peaceful resolution that is easily attained. One area where I believe this to be so is represented by the situation where one spouse locks out another in the context of filing for divorce. While I still believe a search for peaceful means of resolution is desirable, the more effective option may often lie in the legal and social area. This is a sad but practical conclusion.

When a party is locked out of their home, by a partner who is considering or initiating divorce, they face the uncertainty that comes from having no secure lodging. A spouse in such a situation may have no money for safe lodging. If they do have the financial means of obtaining a safe housing alternative, they are leaving behind the support group that is provided by friends and neighbors. They have to live with the indignity of being “expelled” from their own home and facing the question of others as to what they did to bring about this situation. In many cases, perhaps most, the answer is that they did nothing. A vindictive spouse may have made this decision in order to punish their spouse. Perhaps they received poor legal advice to send off their spouse. After all, it becomes more possible now to accuse the departing spouse of desertion or neglect. In addition, it often is true that by sending off a spouse to seek a new lodging, future Court dates and hearings will be more difficult to attend. It is difficult being cut adrift, living from a suitcase, while simultaneously having to engage in divorce proceedings.

An exaggerated example of the above was brought to my attention recently. A spouse was locked out of her home. She went back to her native country because she had no other good alternative. The offending spouse’s attorneys complained to the Court that due to the great distance at which the departed spouse now lived, it had been difficult to serve her in a timely fashion. Talk about killing one’s parents and then seeking compassion due to one’s new role as an orphan!

Locking a spouse out of their home without court permission has no legal justification in my opinion. It is an act of cruelty and moral indifference. However, accepting such a turn of events is likewise improper. A person who finds themselves in such a situation will likewise have no time to seek out mediation possibilities. However there are options available to such people by the legal system. There is no good reason why this route should be ignored..

The rationale for domestic violence legislation is to ensure the safety of parties in such relationships as a marriage. There is no question that a person displaced from their own home is at a personal risk. The Courts are well-established to provide assistance to those who are in perilous situations. Spouses locked out of their homes would fall into such situations. For those who are intimidated by Courts, a local police station can likewise provide the immediate assistance that may be direly needed. In addition to helping those who are displaced, immediate use of the legal resources will act as a check on those attorneys who improperly advise their clients to lock out a spouse from their marital home so as to gain strategic or legal advantage.

Indeed, it may be uncomfortable for a couple to continue living together under one roof while a divorce proceeds. The spouse who is troubled by this should consider obtaining a new lodging. There is no reason why cruel and churlish behavior should dictate that a spouse be locked out of their own marital domain.

A party whose marriage is going through a process of dissolution is liable to bouts of depression and self-doubt. Failing to stand up for one’s rights to live in their own marital home will do nothing for positive for them. It is true, that fighting for no reason during a divorce makes no sense. It aids neither party. However, standing up for one’s right and asserting an expectation of proper treatment is very much a positive step to take.

The late Senator McCarthy made great headway with his blustering attack on loyal Americans until he was confronted by people of integrity and self-confidence. There is only one way to confront a bully. The legal system provides such an option when a domestic lockout occurs. This should not be overlooked.

There is one other avenue of redress that is possible when dealing with the lockout situation. People act with impunity when their conduct is illegal, because they feel they will get away with it. However, people value their reputation in their own community. Spouses who have been locked out of their home should approach local clergy, educators, legislators, etc. The impact of one phone call or friendly inquiry by a trusted acquaintance, to the “bully” spouse may do wonders. Let the community know the names of the advisors, and the advised, who have participated in the shameful act of locking out a spouse during a divorce process.  Perhaps the publicity generated with effectively deal with this shameful behavior.

The above all assumes of course that there was no cause for the lockout such as danger to one’s safety or health. The frequent cause of such behavior is often what President Lincoln would have called our “worst angels”.  We need to address this problem by our “better angels”.

The mediation field cannot offer solutions to all controversies. The legal system is there to be the backdrop at all times to insure that rights are protected. The act of locking out a spouse from the safety of their home is often a shameful and cowardly act.  Passivity in the face of such threats is no solution. There are resources to deal with such situations. We need to stand up for our collective rights and self-respect.  Spousal lockout (when there is no safety reason for such behavior) is a concept which deserves to be eradicated. We need to do more to make this happen.

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