Can I Make My Spouse Move Out?

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Can I Make My Spouse Move Out?

• A Guide for Divorcing Couples

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Your Home is Usually Marital Property
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• If you and your spouse own or
• are living in a home together
• then the house is usually considered marital
  property

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• There may be limited exceptions
• to this rule if you owned the home prior to the
  marriage and your spouse never contributed to
  paying the bills or the upkeep on the home

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However, it is very rare if not almost unheard
of for a family home to be considered separate,
rather than marital, property
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• If the home is marital property and if both
  your names are on the mortgage and deed- then you
  both have a legal claim to the house and you
  cannot just make your spouse leave

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Dont Change the Locks
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• Since your home is usually considered marital
  property,
• you generally have no legal right to unilaterally
  bar your spouse from entering the house

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• Unless you have a court order that says your
  spouse should not be in the home and has no right
  to be there,
• do not try to change the locks or prevent your
  spouse from coming into the home

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Unless you have a court order that says your
spouse should not be in the home and has no right
to be there, do not try to change the locks or
prevent your spouse from coming into the home
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• Barring your spouse from the house without legal
  justification
• can backfire on you during a litigated divorce

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Is it a Good Idea to Leave the Home?
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• The law says that leaving the home should not
  have an impact on who gets the house in a divorce

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If you are trying to make your spouse leave, this
information may make him or her more agreeable to
vacating the house
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• However, while the law doesnt penalize someone
  for leaving the family home, arguments are
  sometimes made that the person who has remained
  in the house with the kids during the divorce
  should just stay there for consistency

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Fear of this type of argument may make the spouse
reluctant to leave the house for fear of
jeopardizing a property or custody claim
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• Talk to your spouse about what leaving the house
  would mean and how it would factor in to your
  divorce settlement

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Has There Been Abuse or Threats of Abuse?
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• While making your spouse leave in a normal
  divorce is difficult or impossible,
• things may be different if your spouse is violent
  or abusive and/or is putting you or your kids at
  risk

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• If your spouse is abusive and you have clear
  evidence of this, then you may be able to go to
  court with this information and the court could
  order your spouse to leave the home during the
  divorce process

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Getting a Court Order to Force Your Spouse to
Leave
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• If you can prove abuse or if you have a credible
  reason why your spouse needs to leave the home,
• then an experienced attorney can help you to
  petition the court to get an order to make your
  spouse leave

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Your spouse must comply with a court order to
leave the home
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Your spouse must comply with a court order to
leave the home
If your spouse wont go, you can secure help from
law enforcement to enforce the court order
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Your spouse must comply with a court order to
leave the home
If your spouse wont go, you can secure help from
law enforcement to enforce the court order
Your spouse could also face contempt of court for
refusal to obey a court order to vacate the home
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Protecting the Children
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• Protecting your kids is likely the first priority
  during the divorce process

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• If the situation is an abusive one and your
  spouse will not leave the home,
• then it makes sense for you to leave
• (you can always get a court order to go back)

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• In situations where there is no abuse, children
  could still be affected if his/her parents remain
  living in the same home while divorcing

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If your spouse wont leave and you continue to
cohabitate, be sure to be civil at all times in
front of the kids
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• One argument you can make to your spouse to help
  bolster the chance of getting him/her to leave is
  the effect that the continued presence in the
  home would have on the kids

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Coming to An Agreement On the Home
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• As the divorce process progresses, you and your
  spouse may come to an agreement on what happens
  to your home

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• If you and your spouse agree that you should
  remain in the home, then it may be advisable to
  legally transfer the ownership of the property
  (and obligation for the mortgage) into your name
  alone

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• If the divorce settlement agreement says the
  property is yours and/or you have transferred
  ownership solely into your name, then the house
  becomes yours and you can make your spouse leave
  it if you wish

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After the Divorce
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• If your spouse refuses to leave despite the
  divorce resulting in you having the full
  ownership of the house, then your spouse could be
  considered to be trespassing

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• Once you are divorced and a decision has been
  made that the property is yours alone, the spouse
  no longer has any claim than any other stranger
  and you can make your spouse leave whenever you
  would like

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If you are considering entering into a divorce we
invite you to contact our firm to request a free
consultation
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We can be reached by phone at 507-625-5000 or
through our website
Click to visit RokoLaw.com