Family Code 753 Does Not Allow a Spouse to Exclude the Other from the Home

Want to lock out your spouse from the home? Family Code 753 states not so fast

What does Family Code 753 prevent? And why does it do so?

Family Code 753 tells husbands and wives what they can and cannot do when they want to exclude their spouse from the home. Ready to learn more about section 753?

What does Family Code 753 state?

Family Code 753 states the following.

"Notwithstanding Section 752 and except as provided in Article 2 (commencing with Section 2045), Article 3 (commencing with Section 2047), or Article 4 (commencing with Section 2049) of Chapter 4 of Part 1 of Division 6, neither spouse may be excluded from the other's dwelling."

Why is Family Code 753 important for husbands and wives?

When the marital relationship is over and a husband and wife head toward divorce, one spouse often wants the other out of the house. Sometimes, both want that. Family Code 753 does not allow either spouse to exclude the other from the other's "dwelling" (residence).

Family Code 753 does not distinguish between an owned residence and a rented one. Section 753 does not distinguish between community or separate property, although the words "from the other's dwelling" seems like an odd choice of words. We are not aware of any Appellate or Supreme Court cases that interpreted Family Code 753 to limit its application between community versus separate property.

Section 753 also cites other code sections as the exception to its rule. Those other code sections deal with emergency or protective orders, including domestic violence retraining orders. Put another way, neither spouse may exclude the other absent a court order.

Family Code 753 prevents self-help. It keeps spouses from acting without the law and a proper court order on their side.

- B. Robert Farzad

Final thoughts on Family Code 753

Divorce is emotional for husbands and wives. Some of our family code sections prevent those emotions from placing either spouse in a precarious physical or financial situation.

Spouses will argue when they live together. Those arguments may escalate. If they do and either spouse has a factual basis to seek a protective order, he or she can file the appropriate request in family court. Until that happens, Family Code 753 does not permit either spouse from taking matters into their own hands.

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