Evicting a Spouse During Separation in Florida

It is important to first note that in Florida, one spouse typically cannot force the other spouse out of the marital home during a marital separation without first obtaining a court order. This is true even if the property is titled in one spouse’s name as their separate property. In other words, both parties are considered to have equal rights to live there until the court makes a formal determination.

This spouse eviction principle can be found in Florida’s equitable distribution framework under Section 61.075 of the Florida Statutes, which treats the marital home as shared property during divorce proceedings.

However, there are legal mechanisms that may allow one spouse to remain in the home exclusively. For example, a judge can grant one spouse temporary exclusive possession if living together becomes untenable or if it’s in the best interest of their minor children.

In more serious cases, such as those involving domestic violence, a spouse may initiate a petition for an injunction under Section 741.30, which can include removal of the other spouse from the residence. Importantly, all of these actions must go through the court and cannot be enforced unilaterally.

Trying to evict a spouse without legal authority, such as by taking matters into your own hands and locking them out, or calling law enforcement can lead to complications. Police often view these situations as civil disputes, and will often not take a stance with the absence of a court order.

Courts may see this behavior as improper, potentially influencing the court on custody or property decisions. In order to protect your legal rights and avoid unintended consequences, it’s crucial to follow legal procedures and seek guidance from qualified Florida lawyers familiar with laws on evicting a spouse during separation.

When Is It Possible To Evict My Spouse From Our Florida Home?

Once again, in Florida, removing a spouse from the shared home during a separation is only possible under certain legal conditions. Both partners generally have equal rights to live in the marital residence, regardless of ownership or lease status.

As such, in order to legally require a spouse to leave, you must obtain a court order, either through a domestic violence injunction or by requesting exclusive rights to the home during the divorce proceedings.

After a petition or injunction has been filed or requested, courts may grant one spouse sole occupancy of the home if cohabitation becomes harmful or disruptive, especially when children are involved.

If there is any history of domestic abuse, a protective order under Florida law can compel the abusive spouse to leave immediately. These legal tools are designed to ensure safety and stability of all parties during the separation process.

Attempting to force a spouse out without a court’s approval, such as locking them out or calling law enforcement, can and will usually backfire legally. Taking matters into your own hands will almost always negatively affect your case.

Following the proper legal channels to evict a spouse is crucial to protect your legal rights and avoid complications with your case. The following is a list of legal steps to remove a spouse from the marital home in Florida:

• Immediately, set up a legal consultation in Florida with a Florida family law attorney to explore your legal options
• Initiate divorce or separation proceedings through the court system
• Request exclusive occupancy of the marital home via court motion
• File for a protective injunction if abuse or threats are present, such as by filing an emergency protective order
• Attend court hearings and provide supporting documentation that supports your request for exclusive use of the marital home
• Follow the court’s ruling and avoid taking unauthorized actions, such as changing locks

What Issues Are There in Connection With Community Property and Common Law in Florida?

Once again, Florida operates under an equitable distribution system rather than community property laws. This system significantly affects how marital assets are handled during divorce or separation.

In an equitable distribution state, property acquired during the marriage is divided based on fairness, not necessarily split down the middle. This distinction matters when one spouse seeks to evict the other, as ownership and rights to the marital home depend on how the property was obtained and titled, rather than automatic equal ownership.

In Florida’s common law framework, any property owned before the marriage or received as a gift or inheritance is generally considered separate, unless it has been mixed with marital assets. However, even if one spouse holds legal title to the home, the other may still have a right to live there during the marriage. This makes eviction complicated, as both spouses may have legitimate claims to occupy the residence until a court decides otherwise.

As noted above, removing a spouse from the home without legal authorization is not permitted under Florida law. In order to do so, one must seek a court order, such as exclusive use of the home during divorce proceedings or an injunction in cases involving domestic violence.

In Florida, What Are the Steps To Evicting a Spouse During Separation?

The general steps for evicting a spouse during a separation process in Florida were mentioned briefly above. The following is a more detailed list of steps to take when evicting a spouse during separation:

• Determine Legal Justification: First, you must determine a valid legal reason for seeking removal, such as evidence of domestic violence or by making a formal request for exclusive occupancy during divorce proceedings
• Initiate Divorce or Separation Proceedings: Filing for divorce allows the court to intervene in matters like property division and living arrangements with regard to the marital home
• Request Exclusive Possession of the Home: After the legal process has begun, you can submit a motion to the family court asking for exclusive use of the home.
  • The judge will then weigh factors such as the presence of children, financial stability, and any history of conflict or abuse when making a determination on whether or not to grant the request
• Apply for a Protective Order if Abuse Is Involved: Once again, if there’s any threat of harm or violence, you can file for an injunction under Florida Statutes Section 741.30, and a temporary restraining order may be issued, requiring the other spouse to leave the home immediately
• Avoid Taking Matters into Your Own Hands: As noted above, changing locks or attempting to remove your spouse without legal approval can backfire, and may cause your case to be viewed negatively by the court, which could affect the outcome of your case
• Consider an Unlawful Detainer Action: If your spouse is no longer contributing to the household and refuses to leave, you may also pursue an unlawful detainer under Chapter 82 of the Florida Statutes
  • This involves giving written notice that their right to stay has ended, and while not legally required, a 15-day notice is often considered reasonable
• File the Unlawful Detainer Case: If your spouse remains in the home after notice of the unlawful detainer, you can file a case in county court to formally remove them
  • Importantly, this process is often complex and distinct from eviction, only applying when no lease or rental agreement exists
• Prepare for the Court Hearing: Finally, you should gather and prepare all necessary documentation and evidence to support your claim
  • The judge will then review the facts and issue a decision based on Florida law and the circumstances of your case
  • You should then follow the court order, regardless of the outcome, as failing to follow a court order can result in civil or criminal penalties

Should I Discuss Evicting a Spouse During Separation With an Attorney in Florida?

Yes, discussing the possibility of evicting a spouse during a marital or legal separation with an experienced Florida family law attorney is highly recommended. As can be seen, the legal process for spousal eviction is complex and depends on many different factors, such as property ownership, domestic safety concerns, and whether divorce proceedings have begun.

LegalMatch can assist you in locating a family lawyer near you with experience in handling matters regarding exclusive use of the marital home. An attorney can help you understand your legal rights under Florida’s equitable distribution laws and also help guide you through your different legal options, such as filing for exclusive possession or seeking a protective injunction.

Taking legal action without proper legal advice can lead to unintended consequences, including negative impacts on custody or property division. A family law attorney can help you avoid such costly mistakes, and ensure your actions align with Florida law. Finally, they can also represent you at any in-person court proceeding, as needed.