Key Takeaways:
- You likely can’t evict your spouse from your home, even if that home is your separate property.
- Many spouses might have to file for divorce before they may exclude their spouse from their home.
- In many states, you may remove your spouse from your home (before or during a divorce) by seeking a protection order, enforcing an existing marital agreement or filing for a temporary injunction in divorce court.
- Court intervention is typically required to remove a spouse, often through temporary divorce orders, injunctions, or protection orders.
- Property ownership doesn’t always give you exclusive occupancy rights, even if only one spouse’s name is on the deed.
When you decide to divorce your spouse, you may want to start living separately as soon as possible. We understand your desire for distance at the end of your marriage, but getting away may be tough when you and your spouse still share a home. If you were wondering how to evict your spouse during divorce proceedings, know that eviction may not be an option. You typically can’t evict your spouse from the home you share, but you might have other options for making sure you live apart while a divorce is pending.
Why can you not evict your spouse from your home?
Unlike a landlord-tenant relationship, marriage gives both spouses certain legal rights to live in the marital home. That’s why eviction laws don’t apply. Here are the key reasons:
- Court intervention required: Removing a spouse isn’t something you can do unilaterally. It typically requires family court involvement, either through temporary orders during divorce or a final decision about property ownership once the divorce is complete.
- Shared ownership rights: Most states presume that property acquired during marriage is jointly owned, even if only one spouse’s name is on the deed. Both spouses usually have the right to live there.
How can I get control of my home?
If you want full control of the home, the court first has to determine whether it’s marital property or separate property.
- Marital property generally covers assets acquired during the marriage and is usually divided either equally (in community property states) or fairly (in equitable distribution states).
- Separate property typically includes property acquired before the marriage, gifts, inheritances, or property specifically agreed to as separate in writing.
Once that determination is made, the court decides who gets the home. In some cases, one spouse keeps the home while the other receives assets of equal value. In others, the home may need to be sold and the proceeds divided.ance it to buy out the other spouse’s share of the equity. Or the court may order you to sell the home and divide the proceeds.
How to legally remove a spouse from your home
While you can’t use eviction laws, there are legal pathways to get your spouse out of the home, either during or after divorce proceedings. These usually require going through family court.
Legal options to remove your spouse:
- Obtain temporary injunctions during divorce: While divorce is in process, you can request temporary orders that give you exclusive use of the home, require your spouse to maintain payments, and prevent them from damaging property until the final divorce decree.
- Enforce premarital or postmarital agreements: If you and your spouse signed a fair, voluntary agreement defining who keeps the home, courts may enforce it during divorce. Agreements are most likely upheld if both spouses have lawyers and full financial disclosure.
- Request protection orders: If there’s abuse or family violence, you can ask the court for a protection (restraining) order. This can require your spouse to leave the home immediately and may even obligate them to keep paying the mortgage or rent.
How a family law attorney can support you in the divorce process
While evicting your spouse may not be possible, legal channels exist to establish new living arrangements during your marriage. Although it’s not required, consulting a lawyer may help you find a solution that protects your rights and minimizes emotional and financial turmoil.
An attorney in your area can identify what legal options you have to exclude your spouse from the home you share and advise you on how to achieve that goal. An attorney can also identify and obtain the evidence you may need to prove your right to remove your spouse from your home. And if civil communication between you and your spouse isn’t possible, an attorney can talk to your spouse or their attorney and negotiate the terms of any marital agreement you seek.
