One of the first and most difficult questions a divorce client asks is “Can I make my spouse move out of the house?” This is understandable – when a marriage is no longer working and divorce is looming, you may no longer want to continue to living under the same roof with your spouse, and living in the same house will likely create more friction between the spouses. This can be especially challenging when the couple has minor children.

Unfortunately, the answer to this question is usually disappointing to the client – you cannot force your spouse to move out of the family home absent abuse or domestic violence. The court must find compelling grounds to order one spouse to move out of the family home (even a rental home) pending the final division and distribution of the assets. Unless the facts of your case fall within one of the limited exceptions, a court will not force your spouse out of the marital home.

Family Code Section 6321 covers the legal grounds under which a judge may order one spouse to move out of the marital/rental home:

(a) The court may issue an ex parte order excluding a party from the family dwelling, the dwelling of the other party, the common dwelling of both parties, or the dwelling of the person who has care, custody, and control of a child to be protected from domestic violence for the period of time and on the conditions the court determines, regardless of which party holds legal or equitable title or is the lessee of the dwelling.

(b) The court may issue an order under subdivision (a) only on a showing of all of the following:

(1) Facts sufficient for the court to ascertain that the party who will stay in the dwelling has a right under color of law to possession of the premises.

(2) That the party to be excluded has assaulted or threatens to assault the other party or any other person under the care, custody, and control of the other party, or any minor child of the parties or of the other party.

(3) That physical or emotional harm would otherwise result to the other party, to any person under the care, custody, and control of the other party, or to any minor child of the parties or of the other party.

Further, Santa Barbara County Local Rule 1410(b) states:

“Ex Parte Residence Exclusion Orders will not be issued without a clear showing of recent physical violence or that there is a credible threat of imminent physical violence. The required evidentiary showing shall include a full description, in detail, of the most recent instance(s) of physical harm, any disposition toward violence, any abuse of alcohol or drugs, and shall specify the date of each occurrence.”

Clearly, under both – the Family Code Section and Local Rules – there must be a great evidentiary showing of immediate harm in order for the court to grant relief.

What Can You Do?

Talk it out. The reality is that your spouse may not want to live with you any more than you want to live with him/her. However, your spouse may have valid reasons for not wanting to move out – child custody and visitation, financial interest in the home, leverage in divorce negotiations, etc. Talk to your spouse about his or her concerns, and try to reach a temporary agreement on some of the issues.

Continue to live with your spouse. If there are no legal grounds for the court to order your spouse to move out, and he or she will not move out voluntarily, you will have to continue to live with your spouse, unless you have the resources to move out yourself.

Move out. If continuing to live with your spouse is impossible, you can move out voluntarily until the division of property is finalized.

If you have questions concerning your family law matter, please feel free to contact the Law Offices of Felix & Killen for a free consultation.

Note: Each case is fact specific, and the information provided in this article is not intended as legal advice. Consult a licensed attorney if you have questions about the effects of divorce.