Key takeaways
- You likely can’t evict your spouse from your home, even if that home is your separate property.
- Many spouses might have to file for divorce before they may exclude their spouse from their home.
- In many states, you may remove your spouse from your home (before or during a divorce) by seeking a protection order, enforcing an existing marital agreement or filing for a temporary injunction in divorce court.
When you decide to divorce your spouse, you may want to start living separately as soon as possible. We understand your desire for distance at the end of your marriage, but getting away may be tough when you and your spouse still share a home. If you were wondering how to evict your spouse during divorce proceedings, know that eviction may not be an option. You typically can’t evict your spouse from the home you share, but you might have other options for making sure you live apart while a divorce is pending.
Why can you not evict your spouse from your home?
In general, an eviction is a legal action in which a property owner asks the court to remove a renter from the owner’s property. By virtue of many state marriage laws, married couples can’t generally have an owner-renter (or landlord-tenant) relationship, so the legal process of eviction isn’t applicable to their housing disputes. However, a court can order your spouse to leave the home in the course of a divorce or separation proceeding.
Spouses typically share ownership in their home because of state marriage laws
In most cases, the marital home is marital property. This means that both spouses have a legal right to manage the property and reside there, even if only one spouse’s name appears on the deed. In fact, your state law might specifically provide that all property involved in a marriage is presumed to be marital property until a spouse can prove in a court proceeding that the property in question is their separate property.
Court intervention is usually necessary to force a spouse out of the home
You may gain the right to remove your spouse from the home you share by requesting relief from a family court. This usually happens during divorce proceedings, either in a temporary order or a final divorce decree.
With a temporary order, the judge does not make a final decision about who owns the home. Instead, they decide who may live in the house while the divorce is pending. A final order, on the other hand, awards ownership of the marital home. Once ownership is determined and the divorce is finalized, the owner may take action to remove their spouse from the home.
Can I kick my wife out if I own the house?
Probably not. As we stated above, many courts presume that both spouses own the home they share as marital property, even if there is only one name on the title. Multiple state laws also forbid individuals from excluding their spouses from property they own separately. As long as your spouse is still your spouse under the law, you may have to allow them to live in a house you purchased on your own.
How can I get control of my home?
To gain the right to remove your spouse from your home permanently, you’ll likely have to argue to a divorce court that the home is your separate property or that you should receive the house as your share of the marital property in the divorce decree.
Before the court makes its decision, it must determine whether your home is marital or separate property.
Typically, marital property is any property you and your spouse acquired during your marriage or any property that the law doesn’t define as separate. And under some state laws, separate property includes:
- Property either spouse obtained before the marriage
- Property both spouses agree in writing is separate property
- Property either spouse obtained through descent, gift, devise or bequest
- Property a spouse acquired in exchange for other separate property
- Property either spouse obtained after a decree of legal separation
Once they define which properties are separate or marital, divorce courts allow each spouse to keep their separate property.
If the home is marital property, how the court divides it depends, in part, on whether you live in a community property state or an equitable division state. In community property states, all marital property is typically divided equally. In a state that follows equitable division rules, marital property is divided “equitably.” While this typically results in a roughly equal division, the court can also take into account various factors such as:
- The length of the marriage
- The financial resources that each spouse has
- The contributions each spouse made to the marriage
- Each spouse’s earning capacity
- The financial resources each spouse brought to the marriage
- The contributions each spouse made to the other spouse’s education or earning power
- Each spouse’s age and health
- The earning capacity of each spouse
- The desirability of awarding the marital home to one spouse over the other because of child custody
- Other financial benefits each spouse will receive in the divorce
- Any enforceable agreements of the spouses regarding the marital home or property distribution
In most cases, each spouse will receive half the value of the home. This may mean that one spouse keeps the home while the other is awarded other valuable assets of equivalent value. If you don’t have other significant assets, the spouse who is awarded the home may be required to refinance it to buy out the other spouse’s share of the equity. Or the court may order you to sell the home and divide the proceeds.
How to legally remove a spouse from your home
As we noted above, many individuals may remove their spouses from their homes by getting a divorce and proving to the judge that the home is their separate property or that they’re entitled to receive the house as part of their share of the marital estate. But we understand if you can’t wait for your divorce to be final. There are several legal alternatives to eviction that require a spouse to leave the family home before the marriage is officially over.
Enforce a premarital or postmarital agreement
If you and your spouse agree on one of you leaving the home when the marriage is ending, you may be able to formalize and enforce this in a premarital or postmarital agreement. If your agreement is voluntary and fair, a court may enforce a provision that requires your spouse to leave the home before receiving a divorce decree.
To prove that your agreement is fair and voluntary, you may need to prove the following:
- That you and your spouse had the opportunity to consult attorneys before signing the agreement
- That you and your spouse fully disclosed your property and financial obligations to each other before signing the agreement
- That you and your spouse signed the agreement without threats of force, undue influence or fraud from the other spouse
- That you and your spouse had the capacity to enter the agreement
Request a protection order that excludes your spouse from the home
If you’re a survivor of abuse or family violence at the hands of your spouse, you may be able to request a protection order (also called a restraining order) from the court. A protection order may require your spouse to leave the family home, even if you’re not in divorce proceedings. And the judge may be able to require your spouse to continue paying the rent or mortgage while they’re outside the home.
Evidence to prove your right to a protection order might include:
- Police reports
- Copies of threatening correspondence from your spouse
- Medical records
- Testimony from you and others about your spouse’s harmful behavior
- Records from child protection services
Request a temporary injunction to remove your spouse during divorce proceedings
When you file for divorce or are in the middle of divorce proceedings, state law may allow you to ask for temporary orders requiring your spouse to leave the family home. Temporary orders might include the following:
- An order for you to have exclusive use of the family home
- An order for your spouse to continue making payments for the family home, regardless of where that spouse is living
- An order for your spouse to cease communicating with you
- An order forbidding your spouse from damaging or affecting your rights to the family home
The provisions of the court’s order may last until the finalization of the divorce, and the final divorce decree might extend those provisions after the divorce is final.
How an attorney can help
While evicting your spouse may not be possible, legal channels exist to establish new living arrangements during your marriage. Although it’s not required, consulting a lawyer may help you find a solution that protects your rights and minimizes emotional and financial turmoil.
An attorney in your area can identify what legal options you have to exclude your spouse from the home you share and advise you on how to achieve that goal. An attorney can also identify and obtain the evidence you may need to prove your right to remove your spouse from your home. And if civil communication between you and your spouse isn’t possible, an attorney can talk to your spouse or their attorney and negotiate the terms of any marital agreement you seek.
Sources
https://app.leg.wa.gov/RCW/default.aspx?cite=26.16.030; FAMILY CODE CHAPTER 3. MARITAL PROPERTY RIGHTS AND LIABILITIES (texas.gov)
FAMILY CODE CHAPTER 3. MARITAL PROPERTY RIGHTS AND LIABILITIES (texas.gov)
Law section (ca.gov); Chapter 40 – Domestic Affairs – NMOneSource.com; Section 3103.04 – Ohio Revised Code | Ohio Laws
FAMILY CODE CHAPTER 6. SUIT FOR DISSOLUTION OF MARRIAGE (texas.gov)
