If you’re reading this, we know that you’re going through hell. After all, the person that you married is scaring you. They are behaving dangerous and you don’t know what to do. But you feel that your spouse needs to be gone from the house for your safety and the safety of your children. There may be numerous reasons why you feel they need to go (such as domestic violence or threatened abuse). But, how can you go about doing this? What is the likelihood of success? Will you just make things worse? This page, written by a family lawyer, should answer all of your basic questions.
In short, it is very difficult to kick your husband or wife out of the house on an emergency basis unless you can show he or she assaulted you or threatened to assault you or your children. If you can’t show that, you can still boot them out if you can convince a judge that there is potential of physical harm in the future to you or your children. But its more complicated than that so read the entire page below to get a better idea of what we’re talking. Or, even better, call a family lawyer for a consultation.
What are Residency or Dwelling Exclusions?
In order to kick our your spouse, you need to obtain a ‘residency or dwelling exclusion.’ These are fancy terms for “kick out” requests; it is also referred to as an order for exclusive occupancy. To legally kick a spouse out of the house, the law requires several requirements to be met. The outcome also depends on whether it this is an emergency or not. It really is contingent on the couple’s situation and the facts involved in the case.
Some More Necessary Basics
First, who owns the house that the family is living in? California is a community property state, which means that if the house was acquired while the couple was married then the house equally belongs to both spouses. It will take a lot more than a disagreement to be able to legally kick a spouse out of the house if your spouse is also a legal owner.
Even after a divorce, a separated couple can still own the house together for a period of time. Without an order from the court, one spouse would not be able to kick out the other. Both parties still have the rights to come and go from the property, during the divorce. There are limited circumstances in which you would be able to legally kick your spouse out of the house. If you have been abused by your husband or wife, you are likely able to make your spouse move out of the home. However, it is important that the instance/s of abuse can be proven or has been documented.
Getting an Order of Exclusive Occupancy to Kick Your Spouse Out of the House
There are two methods of getting an order to remove a spouse from the marital property.
The first method is an emergency order (ex parte). This is an order that is entered without a hearing and without notifying the other party first. We summarize the requirements for this method below. We list the basic requirements to get an emergency order for residency exclusion. You would need to provide the following:
- Proof that the spouse staying in the family home has a legal right to do so; in other words, the right to take possession of the home
- Proof that the spouse that is getting kicked out has assaulted the other spouse. This also includes the threat of assault to the other spouse or someone else under the other spouse’s care, custody or control (children). The proof may be documented occurrences of abuse.
- Providing facts to the family court that show that there will certainty be physical or emotional harm to the other spouse or anyone under their care, custody and control or to a minor child if the abuser stays.
The legal text and specifics can be found in California Family Code 6321(b).
The second method is to obtain an order for exclusive use of the marital home by filing a motion with the judge. This is the more common method of kicking a spouse out of the house. After filing a motion for exclusive use of the home, your case will be heard in court. The difference in this method is that the other spouse is able to speak up and present his/her own facts and rebut claims against him/her. A judge will decide based on the facts that you’re able to prove that:
- Ordering the other party to vacate the home is the only way to protect yourself and the children
- He/she attempted to cause or has recklessly caused bodily harm by acts of physical violence
- Caused you or the children to fear him/her by threatening or being forceful
- Did something that is defined as child abuse
- Behaved in a manner that was abusive to you or the minor children, whether physical or verbal
In either method, the court needs to consider whether denying this request to kick a spouse out of the house will put the other party and children’s safety in jeopardy. In other words, there is a high risk of physical, emotional, or verbal harm if that abusive spouse is not removed from the home. If the court denies the motion, a brief statement must be written describing the reasons for the decision. The only reason that a court would issue an order to exclude a person from the property is if there is evidence of physical or emotional harm threatening the other party, the minor children, or anyone else who is under the care of the requesting spouse.
What if There is No Danger Involved? Can I Still Kick My Husband/Wife Out of The House?
If there is no abuse or potential for abuse then it will be very difficult to kick your husband or wife out. Without any proof that there was abuse or that you and/or your minor children are in danger of being abused, a court would not be able to grant you an order or exclusive occupancy. Your spouse, that you are trying to kick out, will have full access to the home. On the other hand, just because you don’t have an order to legally kick him/her out of the house doesn’t mean that you’d have to live with them until the divorce is finalized.
Oftentimes, one spouse will voluntarily move out of the house during a separation period or when the divorce process begins. If your spouse doesn’t move out of the house, you can choose to temporarily move out of the house while the divorce is in progress. But talk to your family lawyer before doing so to ensure you don’t inadvertently give up any rights to your marital property. You still own the house and you are still entitled to making decisions about the house. During the divorce, you and your spouse will discuss the terms of the home, either selling it, co-owning it with one spouse living in the house, or selling the property and splitting the funds.
During a divorce, there may be animosity between the spouses and things might get ugly. Without any instances of violence to kick the other spouse out, one might fake injuries or treats to get the police to document abuse. For example, a wife might self-inflict bodily injury causing a visible bruise, then call the police to report abuse by her husband. Do not do this. This is ridiculous, however it does happen in real life just to get a restraining order to remove the husband/wife.
It’s important to know that restraining orders don’t just last through the end of the divorce, it will have effect on court decisions on child custody for 5 years. Under California Family Code § 3044, a person who has domestic violence on their record won’t be able to have custodial time with their children for 5 years. It is very important to discuss living arrangements with an open mind and cooperation. If talking civilly with your spouse is not an option, work with your family lawyer to get things figured out as soon as possible.
The biggest challenge of voluntarily moving out of the family home is figuring out the effects it will have on your parenting abilities. If you have children, the parent-child relationship may be impacted when one parent leaves the home. Although, both parents staying in the home during the divorce process may also prove to be a challenge. You should talk to a family lawyer to discuss what the best options are for you and your family.