There are certain domestic scenarios in which a spouse may wish to kick their partner out of the house. At times, doing so is the best means of preserving their own safety or that of their pets or children. In California, it is legal for one spouse to force the other to move out for a set time period. This is accomplished through a court order, but the individual must be able to provide evidence of threats of assault or assault attempts if the case is an emergency. If the situation is not dire, they must exhibit evidence of the potential for emotional or physical harm. The legal term for kicking a spouse out in an unbearable situation is called a dwelling exclusion.
California Family Code Section 6321
The legal means of forcing a spouse to move out of the couple’s residence in California makes it possible for the court to issue an “ex parte order” that excludes an individual from the place they reside with the family, the other spouse’s dwelling, or the home of the partner who cares for the children. The court also includes provisions in the order that protects one of the individuals from domestic violence for a set time period. Such an order effectively demands that a spouse move out of the specified dwelling, even if they are the lessee or the party that holds the legal title to the residence.
The “kick out” order, as an exclusion order is sometimes called, is a document that is legally enforceable and puts one party in sole possession of the couple’s residence in the event of domestic violence and other such emergencies. If a spouse refuses to leave the home after a dwelling exclusion order is in place, the other party may call the police on them, and they may face arrest and other legal penalties.
How Can a Spouse Get a Legal Order to Kick Their Partner Out?
If an individual feels it is necessary to kick their spouse out of the house at any time, it is crucial to hire an attorney who can submit the application for the ex parte order to the court. The court does not allow the spouse to present evidence to oppose the application, so it is vital to provide sufficient evidence that the situation is truly an emergency. Some of the reasons California courts grant exclusion orders include the following:
- The spouse has threatened to or actually assaulted their partner or another party under their care, control, and custody.
- There are indications of imminent harm. This may include letters, texts, videos, and sworn witness statements that show the individual, their child, or another party under their care is at severe risk of being hurt by the spouse.
- The individual would be subject to emotional or physical harm without the order. The California Family Code offers a lower standard of proof in such situations, meaning the person doesn’t need to prove an emergency. If this is the case, however, they must prove there is a dire risk of a problem without the order.
The individual who requests the order must also prove that they have a legal right to possess the home. Once these requirements are met, the court can grant such an order, and it typically goes into effect immediately. A third party, such as an attorney, then serves the spouse with the order as a measure to protect the safety of their partner.
Can One Spouse Kick the Other Out If They Are Going Through a Divorce?
California is a “community property state,” which means property a couple acquires during their marriage belongs to both parties. In many cases, this includes their home, which means one spouse cannot force the other to move out simply because they are in the process of divorcing.
If there are extenuating circumstances that have led to the divorce or occur during the divorce process, however, a spouse may have reason to kick the other out. For instance, a spouse who engages in abusive behavior toward their children can be forced out of the home through an exclusion order under California Family Code 6321. Extreme circumstances such as this are valid legally, regardless of whether the couple is divorcing or not.
The only way a spouse can kick their partner out during a divorce other than by means of an exclusion order is if they own the home entirely on their own and the state doesn’t consider it to be community property. This may be the situation if the individual bought the home before the couple was married, the home is only in their name, and their spouse did not make any contributions to the home while the couple was married. Such a situation would be extremely unusual, but it would mean the spouse has no legal claim to the dwelling. Even so, the other party would need to obtain a court order to legally kick their spouse out.
Should One Spouse Move Out Willingly During a Divorce?
It may not be possible for one spouse to kick the other out during a divorce, but in many cases, it is beneficial for both parties if one of the two moves out voluntarily while they are going through a divorce. The process of legally ending a marriage can take months to complete, and it can be difficult for both spouses to remain in the same home for this time.
If one of the spouses opts to move out, they do not forfeit their legal interest in the home or any rights to it. In fact, it is possible for them to end up with the house as part of the agreement the couple reaches in their divorce settlement. For this reason, neither party should be afraid that moving out means they will lose their home, and they should do what is in their best interest during the divorce. The individual who stays in the home gets a value from doing so, and the court will take this into consideration when they divide the couple’s assets and property.
Trust an Experienced Attorney
If you are in a potentially dire situation in which you need to kick your spouse out of the house, time is of the essence. Paula D. Kleinman, A Professional Law Corporation, can help you quickly complete the necessary paperwork to file for an exclusion order. Contact us today to find out how.