Can I Change the Locks During My Divorce?

Generally, you are not allowed to change the locks of your house during your divorce. There are some limited exceptions to this general rule.

If you own a home, even if your spouse is not on the deed, your spouse has the right to continue to enter the home. Therefore, if you change the locks to the house, your spouse can legally still enter the home. Your spouse can even hire a locksmith to gain access to the house and then you may have to pay the locksmith’s fee.

If you rent, even if your spouse is not on the lease, your spouse has the right to continue to live in the rental space. Your spouse can contact the landlord or hire a locksmith to gain access to the apartment.

2 Main Exceptions To When You Can Change The Locks

There are two main exceptions to when you can change the locks. However, if you are planning to change the locks, you should always first consult with a divorce attorney.

#1: You have obtained a “Stay Away” Order of Protection. A Stay Away Order of Protection means that your spouse has to stay away from you and cannot live with you. Therefore, your spouse cannot legally enter your home or residence. If you obtain a Stay Away Order of Protection, you can and should change the locks. Please note, that an Order of Protection is only valid for a certain amount of time (usually 1 or 2 years). Once that time expires, then your spouse may be able to re-enter the home or residence. Sometimes, you can get an extension to the Stay Away. Prior to the expiration of the Stay Away Order, you should ask your attorney if you can get an extension to the Stay Away Order of Protection or if you have to let your spouse enter your house or residence.

#2: You have obtained “Exclusive Use and Occupancy” of the home or residence. You can request that the Court grant you exclusive use and occupancy of your house or residence. This means, that only you can live in the house or apartment. Although, this is similar to a Stay Away Order of Protection, the main difference is that if your spouse violates an Exclusive Use and Occupancy Order, it does not result in an arrest, instead, it means that your spouse may be in contempt of the Court’s order. Another way to obtain exclusive use and occupancy, is to have your spouse agree, in writing, signed and notarized, that you have exclusive use and occupancy.

In very rare instances, your spouse can be declared to have actually “abandoned” the home or residence. Usually, you need a court to rule that your spouse has abandoned the home or residence. Typically, you cannot on your own that your spouse has abandoned the home or apartment.

Here are some examples of when a spouse has not abandoned the home/residence: (i) they left the home for a week to sleep at a friend’s or relatives house; (ii) they have gone on a long business trip; (iii) they tell you that they are going to leave for a month, to “cool things off”, but, they intend to return.

In contrast, there is one example of when a court may decide that your spouse has abandon the home or residence: prior to filing for the divorce, you and your spouse have not lived together for more than a year.

Before changing the locks, it is extremely important that you get legal advice. If you change the locks and later on the Court decides you did not have the right to do so, you may be facing serious consequences.

David Badanes and the Badanes Law Office have helped numerous individuals with questions about changing locks and other common questions that arise in a divorce.

If you need an attorney to represent you in your divorce, contact the Badanes Law Office today at 631-239-1702, email at david@dbnylaw.com.

The Badanes Law Office has offices in Suffolk County (Northport) and in Nassau County (Uniondale – by appointment only).

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