How Do You Kick Your Husband Out of the House, Legally?

How can you legally kick your husband out of the house when he will not leave?

Does this sound familiar?

1. Your husband is physically or emotionally abusive.
2. Living with him is like a daily nightmare.
3. You want him out of the house.
4. However, he will not leave.

If this sounds like your situation, you are in the right place.

To legally kick your husband out of the house, California law has certain requirements. It requires a showing of assault or threatened assault if the request is made on an emergency basis. It also requires potential for physical or emotional harm if the request is made on a non-emergency basis.

We are going to cover the following topics.

1. What are kick-out orders called in California?
2. How can you legally kick out your husband on an emergency basis?
3. How can you legally kick out your husband on a non-emergency basis?
4. How can you build and prove your case to kick your husband out of the house?

What does California law call these kick-out orders?

In California family law cases, these "kick out" requests are called residency or dwelling exclusions. The court grants the order if the spouse who seeks it meets certain minimum requirements.

What are these requirements to kick out your husband? That partly depends on whether you want the order on an emergency basis or not.

How can you legally kick your husband out of the house on an emergency basis?

California Family Code 6321 states:

"(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."

The law's emphasis is on protecting you from domestic violence.

What is required to get an emergency order to kick out your husband?

Family Code 6321(b) requires you show the court 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."

What does "right under color of law to possession" mean for a kick-out order?

It first means that our California legislature needs to use more simple English when writing laws. But unfortunately this term is not even defined by this code section.

Being on title or a lease is enough but what if you have only lived there even though you are not on title or the lease? The law is not clear. We believe most judges will find this right to possession if you lived in a home or apartment with your husband, regardless of whether you and your husband own or lease it together.

You usually need to show violence or threatened violence to kick your husband out of the house

The words "assaulted" or "threatens to assault" means the court will consider such requests when there is threatened violence or actual violence. A court may require that violence or threat to be recent. How recent depends on the facts and the nature and extent of the threats or assault. Recent may mean days, weeks or even months before depending on the case.

How can you legally kick your husband out of the house on a non-emergency basis?

Kicking your husband out of the house is not as difficult if the request for the order is filed on a non-emergency basis.

California Family Code 6340(c) states; "The court may issue an order described in Section 6321 excluding a person from a dwelling if the court finds that physical or emotional harm would otherwise result to the other party, to a person under the care, custody, and control of the other party, or to a minor child of the parties or of the other party."

This can include harm to the person making the request, to the child or children or to anyone else under the person's care, custody and control. Notice there is mandatory need to show "assault" or "threatened assault."

Do you want to legally kick your husband out of the house?

Here are some tips to legally kick your husband out of the house?

1. Create a journal of your husband's physical and emotional abuse.
2. Contact the police if he threatens you with physical harm or actually assaults you. This can including pushing, throwing objects at or near you, hitting, etc.
3. Take photographs of the evidence including any scratches, bruises or other evidence of your injury. Do the same of any broken objects or other evidence.
4. If he admits to his misconduct in any text, email, letter, etc., save those communications.
5. If there are witnesses to the physical or emotional abuse, ensure you have all of their contact information. Your family law attorney will need that information.

Regarding the evidence, think about this like any other request you may put in front of the court. The court may believe you and a he said, she said situation may be enough; or the Court may want more. The more you have, the better the chance the court will grant it. This may include witnesses, photos, videos and other objective evidence.

Most importantly, get yourself to a safe and secure place. You do not want you and your children to be in a place of harm. You can seek an order to kick your husband out of the house even after you leave the house. You just have to do it within a reasonable time.

Contact the National Domestic Violence Hotline for helpful information.

Do not attempt to represent yourself when you seek an order to kick out your husband

Do not ever handle these types of matters on your own. A family law attorney's experience is important.

If your matter is or will be in Orange County, Los Angeles or any of the other five Southern California counties, contact our experienced family law attorneys for an affordable strategy session.

For additional reading on divorce issues related to real estate, please check out these articles.

• How to divorce an abusive husband: This article goes into significant detail about your options.
• How to sell your house during the divorce.
• Family Code 2640 and the impact of a separate property downpayment on a house.

​This article is not legal advice. Whether you have proper grounds to seek such a kick out order will require an attorney's advice and analysis of your specific facts.