Once a couple has agreed to separate, living together can become challenging or even completely unworkable. However, in the event that one spouse tries to force another to move out of the marital home, complex legal issues can arise. Even in cases where one only one of the spouses holds the mortgage to the home, their partner may be allowed by a court to stay.

If both spouses own the home and both appear on the mortgage, matters are even more complicated. In some cases, due to this difficulty, one spouse may pursue a legal eviction against the other.

What is an Eviction?

An eviction is a procedure available under the law in which a tenant can be forced to move out of their residence, whether it be an owned or leased property. The tenant must not only physically depart from the residence, but also remove their personal property (any belongings they clearly own). In the context of a marital separation, eviction can be associated with particularly complex issues.

When is it Possible to Evict My Spouse from Our Home?

There are a couple of narrow circumstances in which eviction of a spouse may be successfully pursued in court:

  • When the Home is a Separate Property of One Spouse: As discussed above, it may be easier to have one spouse removed if they have a lesser claim to ownership of the home. Really, though, even if that spouse doesn’t appear on the mortgage, a court is likely to interpret the marital home as being the rightful home of both spouses. The most likely scenario in which the owning spouse could evict the other spouse is one in which the owning spouse bought the home prior to the marriage. Any home purchased during the marriage will likely be considered the home of both spouses (or community property, in a state where that is recognized).
    • If the home is truly a property owned by only one spouse, that spouse will have to show documentation to the court to prove it. This includes any records that show that only the owning spouse’s income was used to purchase the home, and that none of the other spouse’s income went to monthly mortgage payments during the marriage. Any contributions to the mortgage payments by the other spouse will render the home community property in the eyes of the court.
  • Where there are Allegations of Domestic Abuse: If domestic abuse can be shown, the abusive spouse may be evicted from the home, even if the home is considered to be community property. The spouse who is the victim of abuse should begin by filing for a temporary restraining order with the court.
    • In cases where there the victim is extremely threatened, in may be necessary to have the police intervene, and then ask that an emergency protective order be granted to get the abusive spouse out of the home until a restraining order can be put in place.

What Issues are there in Connection with Community Property and Common Law?

When trying to determine whether a spouse can be evicted, it is important to know whether the state in which the spouses reside is a community property state, or whether the state follows the common law interpretation of marital property.

In a community property state, most property acquired during a marriage is considered property of the “community,” or both spouses, with the assumption that both spouses contribute equally during the marriage. Spouses may still maintain some separate property, but only under certain conditions. In order for a home to be considered separate property of one spouse, that spouse must show that they either inherited the property (or purchase with an inheritance), that it was given to them (as a gift), or that they purchased the home prior to the marriage.

However, remember that if the other spouse contributes to mortgage payments, the property may become community. Community property states include: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.

In a common law state, property acquired during a marriage is still considered separate property, as long as it meets certain conditions. However, property can still easily become jointly held in the eyes of the law. If both spouses are listed on the mortgage, or if funds from a joint account are used to pay it, the property will be deemed jointly held.

Additionally, all property, whether joint or separate, will be divided upon the couple’s divorce. The court will make an equitable distribution of the assets. In order to decide how to divide the assets fairly, a court will look at:

  • How long the parties have been married;
  • The age and relative health of each spouse;
  • The income and potential future income for each spouse;
  • The standard of living shared by the spouses during marriage; and
  • Whether one spouse contributed to the other’s potential future income by assisting with education or training costs.

What are the Steps to Evicting a Spouse During Separation?

Unless you can show that you have been the victim of domestic abuse, in which case you may be able to get an emergency protective order, you must follow some steps to try to get your spouse evicted from your home:

  1. Obtain a Court Order: File an order with the court for eviction. Sometimes this is known as an Order for Temporary Relief. This is not immediate, and may take more or less time depending upon the state in which you live.
  2. File an Exclusive Use Motion: As the name suggests, this gives the filing spouse exclusive rights to the home. It should remain in place until the divorce has been finalized, at which time a final determination of who gets the house is made anyway.

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

If you are separated and attempting to evict your spouse from your home, you should contact a divorce attorney. Your attorney can assist with both the eviction and with other divorce proceedings.