ORDERS TO VACATE THE MARITAL HOME
Since about 1970 Massachusetts Probate Courts have been authorized during the course of a divorce proceeding to enter temporary orders requiring one of the parties to leave or vacate the marital home.
G.L. Ch. 208, Sec. 34B provides for this remedy if after a Court hearing on the matter the Court having jurisdiction over all marital property finds that the health, safety or welfare of the moving party or of any of the minor children residing within the marital home with the parties would essentially be endangered or substantially impaired by the failure to enter such an Order.
Usually this type of hearing is done by the moving party ex-parte (meaning without the presence of the other party) because of the possibility and danger of violence if the other party was given advance notice of it.
Section 34B will allow for such ex-parte proceeding in any case where the moving party can also demonstrate that there is the substantial likelihood of an immediate danger to health, safety or welfare or to that of minor children living there as a result of the actions of the other party.
Whenever an Order to vacate is issued on an ex-parte basis the person against whom it is issued is given notice immediately and that person is then given the opportunity to be heard at Court no later than five (5) days after entry of the Order on the issue of whether it should be continued.
An Order to vacate the martial home can be issued even if the other party has left the marital home or in cases where the moving party has left the marital home because of fears for their’s or their children’s safety.
The Order to vacate can be issued for up to a period of ninety (90) days and then may be extended an additional ninety (90) days after an additional Court hearing. The Order to Vacate in a divorce proceeding is different from the Order to Vacate in a Ch. 209A Abuse Prevention Action (Restraining Order) whereas the Order to Vacate can extend up to one (1) year.
Whenever an Order to temporarily vacate the marital home has been entered by a Probate Court in a divorce the Register Of Probate must also and immediately transmit a certified copy of the Order to appropriate law enforcement (usually the local police) who then must serve it on the other party (by in-hand personal service unless the Court otherwise orders).
Any violation of a Probate Court Order to vacate is a criminal offense punishable by a fine or felony conviction including imprisonment for up to two and one half years.
Criminal remedies are also not exclusive and the Probate Court may enforce the Order to Vacate through Civil Contempt proceedings.
Anyone seeking to obtain an Order to Vacate should also seriously consider getting the advice of Counsel in order to assist in preparing the Affidavit which should be attached to the requesting Motion setting out in specific detail the offending acts of the other party on which the Motion is premised. This might contain the following:
1. Recitation of the specific acts of cruelty, abuse and harassment; and/or
2. Recitation of specific dates and circumstances in which the Police and/or other law enforcement were called to the marital home.

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