Divorce and Moving Out – By Agreement or By Court Order

Divorce and Moving Out – By Agreement or By Court Order

The subject of divorce and moving out of the family home is a difficult topic for most families. We look at homes like our "castle", "where the heart is" and where we lay our roots. Our children become accustomed to life under one roof and so do we. But divorce and moving out is a subject every couple who separates has to face and how it is faced can either be peaceful or court ordered.

Let's look at the two scenarios we most often see. If after reading this article, you have additional questions about your specific divorce and issues you and your spouse have about who will move out, please contact us for an affordable strategy session. Nothing in this article is legal advice. This is a complex topic and what may be right for your case will require you to obtain legal advice for your specific situation.

Divorce and Moving Out by Agreement

Ideally, this is how the moving out process go. The husband and wife talk, decide together what is in the children's best interest as well as that of their own peace of mind and follow through. In such agreement, there should be specific terms about what the spouse moving out will take with him or her and what the custody and visitation schedule should be between the spouses if they have children. It is sometimes a mistake to move out without a custody and visitation agreement although moving out may have financial advantages to one spouse and it could affect whether earnings and accumulations are community or separate property. Therefore, there is a balance to be struck and what is right for your case will require an evaluation of your specific situation.

Having an agreement in writing and preferably by a stipulation and order (the court signing off on your agreement) avoids one spouse changing his or her mind and using the children as leverage.

An experienced divorce lawyer can help negotiate the terms of a move out and ensure there are no complications.

Divorce and Moving Out by Court Order

The second scenario often becomes contentious. California law and even a county's local rules have specific provisions on the subject of divorce and moving out within the context of residency exclusion orders. Here is the law.

Family Code section 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.

(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.

In addition, as one example, Orange County Family Law Local Rule 704 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.

The California rule state that before the Court kicks out one spouse from the family residence, there has to be evidence of domestic violence. The purpose of the rule is to protect the victim spouse and the children, if they have any. Even without children, the family court has the power to kick out a spouse who has committed domestic violence.

Both the California and Orange County rules state that if one spouse ones to kick out the other spouse on an emergency basis, there must be a great showing of immediate harm to the spouse who seeks this order. This rule exists to avoid kicking a spouse out of a house unless there is actual risk of serious and immediate harm.

Divorce and Moving Out - What is the Right Choice?

Your choice should be informed and intelligent and after speaking with our experienced divorce lawyers. Don't make the mistake of engaging in self help in such situations if the situation between you and your spouse is hostile or violence. If you are being asked to move out, consult with our lawyers before deciding what you should do. This decision is rarely temporary and can have lasting effects on your case.

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