12 Aug Kick Out Orders: Getting your Ex Out of the House
This week, we are up to the letter K in our Divorce from A to Z series. This week’s topic is Kick Out Orders. A Kick Out Order is an order where the Judge orders that one of the spouses has to move out of the family home. These orders are a lot more rare than most broken-hearted divorcees realize.
California courts are resistant to throwing people into the streets when they are going through a divorce. Unless, of course, there is a restraining order against the spouse to be ousted. For parties whose marital issues do not justify the issuance of a restraining order, getting your spouse out of the house can be much more tricky.
First, you have to remember that California is a community property state which means there is a presumption that the house belongs to both of you. This is true even if you purchased the house prior to your marriage because under California Law, if you pay the mortgage with earnings made after you get married, the community is developing an ownership interest in the home. There are limits on the value that the community could be entitled to, however, until there is a trial on these issues, the Judge is going to assume that each of you has at least some ownership interest in the home.
Second, you have to consider that California is not a self-help eviction state. Even landlords have to give tenants notice to vacate and then if the tenant does not voluntarily vacate, the landlord must seek a judgment before ousting the tenant. While the landlord-tenant laws will likely not be strictly applied in your divorce case, the fact remains that in this state we are accustomed to it being very difficult to throw someone out of their living space.
For most couples, the Judges will not order that one party move out. However, if you and your spouse own two homes and both are available for occupancy, you do have a better chance of getting the Judge to award each of you exclusive occupancy of one of the homes. Unfortuately, this decision is based entirely upon the Judge’s broad discretion to make temporary orders while your case is pending trial and therefore the chances of you getting the order that you want will vary according to which Judge you draw.
Instead of spending a lot of time and money going to court to ask the Judge to kick your spouse from the home in a situation where violence is not an issue, you could try one of the following solutions:
- Divide the living space you two have. This should be done by agreement. Laying down masking tape without first discussing who will get which part of the house is not likely to be well received.
- You could discuss renting the family home until the case is over so that way neither of you is enjoying the family home to the exclusion of the other; or
- You could agree to divide your time at the home which would allow you to keep the children in one place while you two rotate who lives in the family home.
Whatever you decide to do, family home issues can result in one of you owing the other a substantial sum of money so before you make any decision, we strongly recommend that you consult with an attorney to make sure that you are not hit later with a hefty payment to the other side. You can set up that consult now by clicking here.
LEGAL ADVERTISEMENT. This is just a basic overview and is not legal advice specific to your situation. You should consult qualified legal counsel with questions regarding your situation.