Evicting a Spouse during Separation

Where You Need a Lawyer:

(This may not be the same place you live)

At No Cost! 

 What Issues Arise When Evicting a Spouse During Separation?

In general, many states require married couples to separate for a certain period of time before they can file for divorce. This is not always the easiest task to accomplish. The parties may not have the money to support two different households or to live apart. Couples who are forced to live together for such reasons during the separation period can face serious challenges since they are already at odds with each other.

In some instances, one spouse may attempt to evict the other spouse from the marital home. An eviction refers to when an individual is legally ordered to vacate a particular property. While this may seem clear in a landlord-tenant context, it is much more difficult to obtain an eviction order when the parties are married. This is especially true if both spouses contributed funds to purchase the home or both their names appear on the deed and title to the home.

Even if a spouse did not contribute funds to the purchase of the couple’s marital home or does not appear on the mortgage or on the deed and title documents to the home, they may still be permitted to reside in the home during the couple’s separation period.

Additionally, in cases where a couple is trying to resolve their issues and refrain from getting a divorce, living together may make the situation worse. Some spouses may turn violent and abuse the other spouse if the tension becomes too much under the same roof. In such a case, a spouse may be evicted from the home despite being its sole owner if such a situation occurs.

However, being evicted during the separation period does not necessarily mean that the spouse who does not own the house will be able to keep it once the couple’s divorce is finalized.

Given the sensitive nature of separation and divorce issues, it may be in your best interest to contact a local family law attorney for further advice on the laws regarding separation and evictions in your particular state. Not only will your attorney be able to answer questions that are specific to your matter, but they can also assist you in filing for an eviction or emergency protection order depending on your situation.

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

There are a few possible scenarios in which it may be possible for one spouse to evict the other spouse from the marital home. These include the following:

  • When there is evidence of domestic violence or abuse: If a spouse can prove that there have been repeat incidents of domestic violence or that the other spouse has abused them or the couple’s children, then the petitioning spouse may be able to ask a court to evict them from the marital home. This is true even if the marital home is considered to be the community property of both spouses. To initiate this process, the spouse alleging abuse should file a motion for a temporary restraining or protective order with the court.

    • In situations where a victim feels particularly threatened or that their life is in imminent danger, then they should contact the police and file for an emergency protective order. While this is only a temporary solution, it can prevent the current situation from escalating for a limited amount of time until further protective measures can be implemented (e.g., a permanent restraining order).
  • When the marital home is considered separate property: If a marital home is considered to be the separate property of only one of the spouses, then it may be easier to evict the other spouse from the home since they do not have as strong of claim over the home or the right to use it. In most cases, however, the marital home is viewed as belonging to both parties, regardless of who initially owned it. Thus, a spouse would have the best chance of being successful in evicting the other spouse if they bought the home before the couple was married. Otherwise, it may be harder to obtain an eviction order.

    • In cases where a home genuinely belongs to only one of the spouses, that spouse will need to submit sufficient evidence to the court for proof, such as title documents, the deed, a copy of the will gifting them the home, and so forth. The spouse may also show that they paid for it with funds on their own and that the other spouse did not contribute any payments toward the home.

      • However, the case will become more complicated if the other spouse is listed on the deed, the mortgage documents, and/or they contributed funds to the purchase of the home or the mortgage payments.

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

Before a spouse can be formally evicted from the divorcing couple’s marital home, the petitioning spouse will need to know whether the state in which the divorce is being filed follows the common law interpretation of marital property or if they live in a community property state.

For instance, in a state that applies the community property guidelines to marital property, any property acquired during the couple’s marriage will generally be considered to belong to both spouses equally. Property will only be viewed as separate from marital property in a community state under certain conditions.

So, for example, a house may qualify as separate property if a spouse is able to prove that they either purchased the house prior to the couple’s marriage or inherited or were gifted the property through a relative’s will.

It should be noted, however, that there are some instances wherein a marital house may still be viewed as community property even if one of the spouses did purchase it before the couple’s marriage. This will be contingent on a number of different variables and state laws. Only a handful of states still enforce community property guidelines, including Arizona, California, Louisiana, Idaho, Washington, Texas, Nevada, New Mexico, and Wisconsin.

As for states that follow the common law standard, property that is acquired during the marriage may be considered separate property when certain factors are present, such as if only one spouse is listed on the deed to the marital home and the home was purchased with funds from an individual bank account.

In contrast, a deed to a marital home that lists both spouses as the owner and/or which was purchased with funds from a joint bank account, will be deemed to be marital property that is owned by both spouses since they both contributed to it.

One other detail to keep in mind about property distributions during a divorce is that all property will be divided among the parties at the time that the divorce is finalized, regardless of whether that property is labeled as separate or joint marital property. The court will review the list of properties and assets owned jointly or separately by the couple to determine how to equitably distribute them amongst the parties.

Some factors that a court may examine in order to ensure that the property and assets are divided fairly between the parties include:

  • How long the couple was married prior to filing for divorce;
  • The income and potential future earnings of each of the spouses;
  • The standard of living that was upheld throughout the course of the marriage;
  • The age, the physical well-being, and the mental health of each of the spouses; and
  • Whether one spouse contributed to the other spouse’s potential future income or earnings by providing financial support for work training expenses or further education costs (e.g., they paid for their spouse’s graduate program or supported the family while they attended school).

What are the Steps to Evicting a Spouse During Separation?

Separation and divorce issues are primarily governed by individual state laws. Thus, while there are some general steps that a person can take to evict their spouse during a separation period, there may be either limited options available or extra steps that one can take depending on the laws of a particular state.

One common method that can be used to evict a spouse in many states is by filing a request for a temporary order to vacate the marital premises with the local family court. Again, this option may only be available in certain states and each of those states may have its own guidelines, such as how long it might take for such an order to be ruled on or to go into effect.

Another way that a person may be able to evict their spouse during a separation in some states (e.g., Delaware) is by filing a motion for exclusive use of the marital home. Similar to the above option, if approved, this grants the petitioning spouse exclusive rights to occupy the marital home until the couple’s divorce is finalized. However, this does not necessarily mean that the petitioning spouse will be allowed to occupy the marital home after the divorce.

In addition, it should be noted that an individual who is attempting to evict their spouse due to incidents of domestic violence and abuse inflicted upon themselves and/or their children, may be able to petition the court to obtain an emergency protective order (“EPO”).

Although an EPO is only intended to be a temporary protective measure for specific situations, it can serve as a powerful placeholder until a person can secure a more permanent legal solution from the court.

Lastly, an individual may also choose to speak with their spouse outside the confines of a courtroom if they believe that they will be able to communicate and reach a peaceful compromise with their spouse. However, it may be in an individual’s best interest to speak with their attorney first about this option before making contact with their spouse.

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

If you are in the midst of the divorce process and would like to learn more about your options regarding whether you can evict your spouse during the separation period, you should seek out the specific legal guidance of a local family law attorney immediately.

A family law attorney who has experience in separation and divorce matters will be able to answer any questions you may have about the eviction process and can inform you of your state’s relevant eviction laws. Your attorney will also be able to assist you with completing any necessary legal documents and filing them with the appropriate courts.

Additionally, if you need help with other aspects of your divorce case, such as drafting motions to petition the court for a particular request and/or in developing a child custody plan, your attorney will be able to work on these documents as well.

Finally, your attorney will also be able to provide legal representation during family court proceedings and at other meetings pertaining to your divorce case like negotiations for alimony payments.


16 people have successfully posted their cases

Find a Lawyer