Guideline 12:11
An order to vacate a marital residence may be entered pursuant to G.L. c. 208, § 34B.
Commentary
Orders to vacate the marital home may be entered during the pendency of divorce, separate support, or maintenance actions. At the commencement, or during the pendency, of an action, the court may enter an order requiring a spouse to vacate the marital home for an initial period not to exceed ninety days, and an additional period upon further motion. Each order is predicated upon a showing of danger to the health, safety, or welfare of the moving party or any minor child(ren) residing with the parties. There is no requirement that the child(ren) be born of the marriage.
It should be noted that the standard for an order to vacate after notice to the other spouse is that “the health, safety, or welfare of the moving party or any minor child(ren) living with the parties would be endangered or substantially impaired.” In a highly contested custody case, the court should consider the extent to which the conflict may endanger the child(ren). Upon a showing of a substantial likelihood of immediate danger to the moving party or the child(ren) residing with them, the court may allow ex parte relief. In such case, the court shall schedule a second hearing no later than five days after the temporary order to vacate is entered. The time frames for the second hearing in this section differ from c. 209A which requires a second hearing within ten days. All other motions to vacate the marital home must be marked for hearing in compliance with the Massachusetts Rules of Domestic Relations Procedure, Rule 6(c) (seven days’ notice to the opposing party). An order to vacate may enter even if the opposing party is not residing in the marital home or if the moving party has vacated to protect their safety or the safety of any minor child(ren).
The court must be mindful that the order to vacate the marital residence must be properly extended to, or on the date of, the expiration of its initial ninety day period, as a defendant could otherwise avoid a conviction for violating the order that has expired. See, e.g., Commonwealth v. Blessing, 43 Mass. App. Ct. 447, 449-450 (1997). Additionally, a temporary order to vacate in a divorce action pursuant to G.L. c. 208, § 34 does not survive the judgment nisi. Id.
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| Last updated: | October 20, 2025 |
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