How Can I Kick My Wife or Husband out of the House?
California family law requires a showing of assault or threatened assault if the request is made on an emergency basis or the potential for physical or emotional harm if the request is made on a non-emergency basis.
A divorce may be inevitable. Living with your spouse may be unbearable. But how can you kick your spouse (wife or husband) out of the house and do so legally?
In California family law cases, these “kick out” requests (called residency or dwelling exclusions) are granted if the spouse who seeks it meets certain minimum requirements. What are these requirements to kick out your husband or wife? That partly depends on whether you want the order on an emergency basis or not.
Let’s take a look at California law. This article isn’t legal advice about your specific case or facts. For legal advice and your questions about your situation, please consult with an experienced family law attorney.
How can I kick my wife or 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.
So what is require to get an emergency order to kick out your spouse? 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.
Let’s take a look at Orange County Family Law local rule 704(E). This states:
A temporary restraining order prohibiting a party from the use of the family home will not be granted on an ex parte basis unless the request is supported by a declaration(s) by a witness setting forth a factual basis showing immediate and serious harm. The declaration(s) must state, in detail, the time and place of the act(s) and the exact injuries suffered by the moving party.
What does “right under color of law to possession” mean? 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 the spouse has just been living there even though they don’t have either? The law is not clear although we believe most judges would find this right to possession if a husband and wife have lived in a home or apartment together, regardless of whether they own or lease it together.
As you can read from the law, these kick out orders on an emergency basis are not easy to get. The words “assaulted” or “threatens to assault” means the court will consider such requests when there is threatened violence or actual violence. In Orange County, the judge also needs a showing of “immediate and serious harm” and, in our experience, the assault or threat has 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.
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.
What about a non-emergency basis for kicking a spouse out of the house?
Kicking a husband or wife 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 needs to find physical harm or emotional harm would result if the order is not granted. 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 kick your husband or wife out of the house or are you facing such a request from your spouse?
Don’t ever handle these types of matters on your own. A family law attorney’s experience is important. This article is not legal advice. Whether you have proper grounds to seek such a kick out order or whether you can successfully defend one will require an attorney’s advice and analysis of your specific facts. 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 our articles on how to sell your house during the divorce. In addition, we have written articles on Family Code 2640 and the impact of a separate property downpayment on a house. For a terrific FAQ and answer guide, check out what we have written on California divorce laws.