Can my spouse be charged with trespassing on property after voluntarily moving out?
Question Details: I have owned residence prior to marriage. We lived together in residence for 13 years. We have only been married for 5 years. She voluntarily moved out 2 1/2 months ago. I subsequently filed for divorce and had her served. She has been told to ask permission to come back onto property.
No, it is not trespassing, because apart from any court order (see below) in the divorce case, she would have a legal right to entry, access, and use--i.e. this is not a case of someone who has no right to enter the property under the law.
If there is an actual court order in the divorce barring her from access without your permission or consent, your recourse would be to file a motion in family court to enforce the court order: the court can fine or otherwise punish/sanction her. When the only thing keeping a person out is a court order in a pending case, you need to go to the court issuing the order to enforce it.
If she was simply "asked" to request permission before coming back but there is no court order at present, you do not have any enforceable right at present to keep her out. In this case, you'd want to ask the family court to issue an order to that effect.
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