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YOU CAN’T GO HOME AGAIN – Divorce and the Marital Home


The Gasper Law Group, PLLC

If you decide to leave your spouse and your home, the old adage “You can’t go home again” may apply to you – literally. The law of burglary is designed to protect the dweller, and hence, the controlling question is occupancy rather than ownership. People v. Johnson, 906 P.2d 122 (Colo.1995).

C.R.S. 2011 Section 18-4-202(1), states:
A person commits first degree burglary if the person knowingly enters unlawfully, or remains unlawfully after a lawful or unlawful entry, in a building or occupied structure with intent to commit therein a crime … against another person or property, and if in effecting entry or while in the building or occupied structure or in immediate flight therefrom, the person … assaults or menaces any person….

Under section 18-4-203(1), “[a] person commits second degree burglary, if the person knowingly breaks an entrance into, enters unlawfully in, or remains unlawfully after a lawful or unlawful entry in a building or occupied structure with intent to commit therein a crime against another person or property.”
In determining whether the crime of burglary has been committed, the focus is upon the possessory rights of the parties and not the ownership rights based on legal title. Howard v. People, 62 Colo. 131, 160 P. 1060 (1916). In Sloan v. People, 65 Colo. 456, 176 P. 481 (1918), the court held that any rightful possession of a premises creates a sufficient “ownership” or possessory interest in the property such that an unlawful entry constitutes a burglary committed against the person with that interest.

So, could you, as an estranged spouse who left his/her home, if you decide to return to that home be charged with burglary, or does your marital relationship preclude such a charge? Maybe. It depends on the status of your “possessory interest”, whether you are still privileged or licensed to enter the residence. The mere existence of a marital relationship does not preclude a burglary conviction.

What factors might a court consider when determining whether an estranged spouse still has a right to enter a one-time marital residence? The most obvious one that comes to mind is the marital status of the parties, the existence of any legal order against the estranged spouse, extended periods of separation, the names on leases or documents of title, the acknowledgment by the estranged spouse that he or she had no right to enter the premises, the method of entry, what measures had been taken to exclude the estranged spouse from the residence, and whether the estranged spouse understood that his/her possessory interest had been relinquished.

Where a restraining order exists that prohibits you from reentering the marital home and or restricts you from the marital property, your unauthorized reentry during the period of court ordered exclusion could subject you to a burglary charge. Where you and your spouse have separated, are living apart and you have communicated that to each other, one spouse does not have the right to enter the residence of the other where that residence is previously shared marital property, even where a property settlement has not been reached.

What if one spouse has leased a residence after a separation? The other spouse is not privileged or licensed to enter that residence simply because there is still a marital relationship. If the other spouse has no possessory interest in the leased residence, unauthorized entry may result in a charge for burglary.

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