In California, an individual cannot treat their spouse like a tenant and evict them from their family home. The process of evicting a spouse during separation or divorce is a matter that is governed by California family law.
A person who feels that they need to evict their spouse from their residence would benefit from a legal consultation in California with a California lawyer.
The existence of the marital relationship means that spouses may well have shared rights to the home. For this reason, arranging for a spouse to move out of the home during marital separation or divorce requires a court order, which is obtained through specific legal processes within the family court system. A spouse would not resort to the law of eviction.
When Is It Possible to Evict My Spouse From Our California Home?
It is possible to arrange to have a spouse leave a couple’s shared home. A person must have an active family law case, which means an action for divorce, legal separation or annulment. A person can begin a family law action by filing a petition in a California superior court.
If no petition is pending, a court does not have the authority to issue orders for spousal removal. There is an exception in emergency situations that involve domestic violence.
A request for an order directing a spouse to leave is a motion filed within the larger case. It would be entitled a “Request for Order” and would ask a judge to make a decision as to which spouse should have exclusive use of the family residence while the case is pending. Of course, the spouse seeking the order would have to offer a persuasive reason as to why they should have exclusive use.
The legal standard that the court would apply is that the presence of both spouses in the home is causing emotional distress or domestic strife that is detrimental to the one spouse and/or their child. The spouse seeking the ouster of the other would need to describe the divisive environment and explain how giving them sole occupation would maintain domestic peace and stability.
The court’s order at this point would be temporary only and would not have any effect on the community property interest of either spouse in the home. Again, the final division of community property would be determined later. If one spouse is given exclusive use, they would also acquire a fiduciary duty to preserve and maintain the property.
They might well have to make mortgage payments if ordered to do so. Of course, the court could order both spouses to contribute to the cost of paying the mortgage and maintaining the property.
Again, what would happen to the house after a separation, divorce or annulment is final would be decided in the main case. Or the spouses might be able to come to an agreement on the issue.
In the event of abuse, however, one spouse may be evicted even if the home is community property. The best way to go about removing an abusive spouse from the home during divorce proceedings, or at any other time, is by asking the court for an order of protection, otherwise known as a restraining order.
The restraining order process starts by filing for a temporary restraining order (TRO). If one spouse urgently needs to remove their spouse from their home because they present a danger to life or limb, they apply for an emergency protective order (ERO). Or law enforcement officers who may have responded to a domestic violence call or received a domestic violence complaint may apply for a protective order.
Whether the order is a TRO or an ERO, any court order that restricts contact between a violent spouse and the other spouse means that the violent spouse cannot enter or even come within the vicinity of their victimized spouse.
What Are the Issues in Connection With Community Property and Common Law in California?
California is a community property state, so property that the spouses acquired during the marriage is considered to belong to both spouses equally. This may be true even if only one spouse’s name appears on the deed or lease, and both spouses have a legal right to live in the home until a judge orders otherwise.
However, an eviction may be possible if it is clear that one spouse owns the home as their separate property. The spouse who wants to claim the house as their separate property would need to be prepared to show that the home is clearly their separate property.
In a community property state such as California, a court would consider a home the separate property of one spouse only if that spouse acquired it as a gift or as an inheritance. Or they may have acquired it before their marriage.
The spouse who claims the house as their separate property would also want to show that the other spouse did not acquire an ownership interest in the home by contributing to paying a mortgage or making significant repairs or renovations to the residence.
In California, What Are the Steps to Evicting a Spouse During Separation?
Another option in cases that involve domestic violence, is to ask a court for a Domestic Violence Restraining Order (DVRO). Under California’s Domestic Violence Prevention Act, a spouse who is the victim of domestic violence can request a “move-out” or “kick-out” order. In order to obtain a DVRO, the victim of spousal abuse must meet a higher standard of proof than does the spouse who makes a standard request for exclusive use of the family residence.
To obtain a move-out order, the spouse seeking the order must show the court that the other spouse has committed an act of assault or threatened to assault them or another household member. The spouse who has been victimized by violence must also show that they have a legal right to be in the home, even if their name is not on the lease or the deed.
The spouse who asks for a move-out order must provide detailed, factual descriptions of the abuse. Helpful evidence would be such items as photos and police reports. If the judge finds the evidence credible, they can issue a Temporary Restraining Order (TRO), which contains a move-out order. Law enforcement would be able to enforce it immediately.
Should I Discuss Evicting a Spouse During Separation With an Attorney in California?
If you want your spouse to leave your family home, or if your spouse is trying to push you out, you need to talk to a California family law attorney. Your lawyer will be able to review all the facts of your situation and advise you about the best path available to you for getting to the solution you need for your life. Your attorney can work on negotiating a resolution of your housing conflict with your spouse, and if that does not produce the desired result, your lawyer can represent you in court.
If your spouse has already submitted a request for a TRO or a DVRO, you have only a limited time to respond in court. You need to contact a California family law attorney as soon as possible so you have plenty of time to prepare your response.
