Evicting a Spouse during Separation

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Evicting a Spouse during Separation

Living together during a divorce is, in most situations, impossible to do. A divorce that forces one spouse out of the family home can create complicated legal situations, especially if the property was purchased during the marriage and is jointly owned. In these situations, eviction of a spouse during separation may be a legal option.

What Is an Eviction?

An eviction is a legal process to remove a tenant from possession of a residential or commercial property. An eviction includes physically removing the individual and their personal belongings from the residence or commercial property.

When Can I Evict My Spouse from Our Home?

A spouse can be evicted when:

• Home is Separate Property

In a situation where a family home was purchased with the separate property of one spouse, that owning spouse may evict the other spouse where ownership is clear. However, in most cases, unless the home was separate property prior to the marriage, it is more likely than not that a family home purchased during the marriage is considered community property.

In situations where the home is separate property, the owning spouse must present proper documentation to prove that the home is clearly separate property. Additional information may be required, such as providing financial records to show that no community earnings were used to pay down the mortgage of the home during the marriage. If community earnings were used to pay down the mortgage on the property, the community has acquired an interest in the home, and it is no longer deemed the complete separate property of the owning spouse.

Domestic Abuse Allegations

In the event domestic violence has occurred, one spouse may be evicted even if the home is community property. The best way to remove an abusive spouse from the family home is to file a restraining order with the court. The restraining order process starts with the filing of a temporary restraining order. If there is an urgent need to separate the parties due to a threatening situation, an emergency protective order may be issued by law enforcement officers that have responded to a domestic violence call or complaint at the home.

Community Property Vs. Common Law

Spousal eviction depends on whether a state is a community property or common law state.

In a community property state, property is considered separate or community property. A family home will be considered separate property if the property was:

•Inherited (or purchased using money from an inheritance);
•Owned prior to the marriage; or,
•Given as a gift.

If neither of the above examples apply or can be proven, the home will be deemed to be community property where both spouses share an interest in the home.  Community property states consider each spouse to own an equal interest in all property, regardless of whose name is on title for the home.

A common law state uses equitable distribution to divide property, which makes it difficult to assert that the house is owned by only one spouse. Equitable distribution is views assets differently. In contrast to a community property state, if your name appears on an asset, you are considered the owner. However, your spouse has a legal right to claim a “fair and equitable” portion of those assets in a divorce. What is considered “fair and equitable” will vary as a variety of different factors are considered by the courts. These factors include:

•Length of the marriage;
•Age and health of the parties;
•Income and future earnings of the parties;
•Standard of living established during the marriage; and,
•Value of investment made by one party to help with education or training of the other.

Steps to Evicting a Spouse during Separation

If you have just cause to evict your spouse and the eviction does not include an allegation of domestic violence, you must:

1) Obtain a Court Order

To obtain a court order, the evicting spouse must file a motion. In many states, the motion is called an Order for Temporary Relief (OTR). The time frame to acquire an OTR depends on the state. In some states, it may take one month, while in other may take up to five months.

2) File an Exclusive Use Motion

This motion gives you exclusive rights to your home. This motion provides that throughout the separation and divorce proceedings, you have the right to say who may live at the property and who may be excluded from the property.

Community property states will typically determine whether the home is a community property or separate property asset. If the home is deemed to be a separate property asset, eviction of a spouse will be easier to obtain.

In a common law property state, it is harder to prove that a home is separate property. Despite this, you may continue to file for a motion for exclusive use of the property. Some states require abuse or domestic violence to exist in the marriage for a motion to be granted.

Should I Discuss Evicting a Spouse during Separation with an Attorney?

Separation and divorce are complicated issues with many rules that vary from state to state. Thus, contacting a divorce attorney about evicting your spouse during a separation may be necessary. Talking with a divorce attorney will help you protect your rights while avoiding breaking any laws.

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Last Modified: 01-04-2016 03:18 PM PST

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