LEGAL GUIDE
Written by Avvo Staff | May 30, 2014

Evicting Your Spouse During a Divorce

For many individuals going through a divorce, cohabitation is impossible. During a divorce, some spouses can find an equitable arrangement, while others need to separate. But can you evict your spouse?

Here are some guidelines for removing your spouse from the home during a divorce.

Getting a Court Order

Marriage is a legally binding contract, and any property that’s acquired during the marriage is considered jointly owned. Even if you personally pay the monthly mortgage note, or if your spouse’s name is not on the deed, by law it is a joint asset. As such, you can’t evict your spouse from the home.

However, depending on the circumstances and the laws of your state, it is possible to get a court order to remove your spouse from the home. Commonly called an Order for Temporary Relief, this can take anywhere from one to five months, and will depend on the county you live in, the judge, or the attorney assisting you with the case.

For example, in Illinois you can file a temporary order granting possession of the house. In North Carolina, what’s used is called "divorce from bed and board," and you will have to show that your spouse is abusive in some way.

Filing a Motion for Exclusive Use

When you decide that cohabitation is no longer an option, you’ll often have to take into consideration the specific laws of the state and county you live in. Each state is governed by its own sets of rules regarding divorce and shared property. You either reside in a community property state or a common law property state.

In a community property state (which total 41), if you were the purchaser of the home, it’s possible that your home might be considered separate property. In which case, an eviction is easier to pursue.

In a common law property state (such as California, Arizona, or Nevada) this is thornier issue. It’s harder to prove that the property is separate.

Consequently, if necessary, you can file a motion for exclusive use of the home. This means that for the duration of the divorce, the property is yours and you have the authority to say who lives in it and who doesn’t, including your spouse. For example, in Michigan, an "order for exclusive occupancy" is possible under some circumstances, but more often than not it has to be rooted in abuse or domestic violence.

Eviction and Domestic Violence

If you have been a victim of domestic violence, the quick removal of the abusive spouse is paramount. One of the first steps is to file for a restraining order. Additionally, each state has its own laws regarding domestic violence. In Illinois, the Illinois Domestic Violence Act of 1986 can be used to file an Order for Protection, so long as it can be proved that there has been physical abuse, harassment, or intimidation. An Order for Protection will immediately bar your spouse from the home. This is the best method to ensure the safety of your family. Domestic violence is taken very seriously by the courts, so make sure you report any instances of it. It will help your case.

If you’re considering the removal of your spouse from the home, whether to protect yours or your children's safety or for some other reason, be sure to consult with an attorney regarding your state’s laws and protections as they relate to evicting a spouse.

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