Evicting a Spouse From The Family Home During Divorce

During a divorce, something that is generally considered a co-owned marital asset such as a home is still considered to be the property of both spouses, regardless of who pays for what, or whose name is on what legal documents. Therefore, it probably isn’t legally possible for a person to evict his or her spouse from the home during divorce proceedings in any state. In some states, however, it may be possible to evict a spouse during a divorce if there are allegations of abuse or other special circumstances apply.

Eviction May Be Possible if The Home Is Separate Property

While many courts generally prohibit one spouse from evicting the other, such an eviction may be possible when the home is clearly owned by one person and not the other. However, this is more than likely not the case since the home is almost always automatically considered a marital asset. In order to show that the home belongs to one spouse, the spouse wishing to retain the home and evict the other will need to present evidence that the home is clearly separate property.

In a community property state, the home would only be considered separate property if it were acquired by the spouse prior to the marriage or as a gift or inheritance. Otherwise, all other income and assets gained during the marriage is assumed to be community property owned by both spouses.

In a common law property state, it might be even more difficult to show that the house is separate property, and it might matter less because showing the property is separate may not be enough to evict the other spouse. Common law property states use equitable distribution to divide property, which can sometimes include distributing one spouse’s separate property to the other spouse to ensure a fair division based on needs of both the spouses and other factors.

A Spouse May Be Evicted if There Are Abuse Allegations

In the event of abuse, however, one spouse may be evicted even if the home is co-owned. The best way to go about removing an abusive spouse from the home during divorce proceedings is by filing for an order of protection, otherwise known as a restraining order.

The restraining order process starts by filing for a TRO, a temporary restraining order. If there is an urgent need to remove the spouse from the home due to danger to life or limb, an order called an emergency protective order can be applied for, usually by law enforcement officers who have responded to a domestic violence call or received a domestic violence complaint.

Regardless of the type of order, any order restricting contact between an abusive spouse and the other spouse will result in the abusive spouse’s inability to enter or even come near the home of the victimized spouse.

After Property Division

Another exception to the prohibition on eviction occurs when the divorce proceedings have progressed to a point where the property belonging to the couple has been divided. A home may be ordered sold and the proceeds divided between the spouses, or one or the other spouse may get possession of the home. At that time, if a spouse not in possession of the home lingers, it would be possible to remove the spouse by either enforcing the court’s order or by initiating eviction proceedings.

Navigating Property Division: Case Studies in Evicting a Spouse From The Family Home During Divorce

Case Study 1: Eviction Based on Separate Property Ownership

John and Sarah were going through a divorce, and they both claimed ownership of the family home. John argued that he had purchased the home before the marriage and that it should be considered his separate property. To support his claim, John presented evidence of the purchase agreement and financial records showing his sole ownership.

The court agreed that the home was John’s separate property and granted him the right to evict Sarah from the premises during the divorce proceedings.

Case Study 2: Eviction Due to Abuse Allegations

Lisa and Michael were divorcing, and Lisa had filed for an order of protection due to allegations of domestic abuse. The court granted Lisa a restraining order, which prohibited Michael from entering or coming near the family home. As a result, Lisa was able to effectively evict Michael from the property during the divorce proceedings, ensuring her safety and allowing her to maintain possession of the home.

Case Study 3: Eviction After Property Division

During the divorce proceedings, Emma and David reached a property division agreement that awarded Emma sole ownership of the family home. The court ordered David to vacate the premises by a specific date. However, David refused to leave, disregarding the court’s order. In this scenario, Emma had the option to enforce the court’s order or initiate eviction proceedings to legally remove David from the property.