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Can I Kick My Spouse out of the House?

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By Christopher Coble, Esq. on June 13, 2016 6:58 AM

You're not divorced yet, and maybe you're still not sure whether you want a divorce at all. All you know is that you need a little breathing room, and you don't want to be the one shacking up in a motel for the night or longer. You want your spouse out of the house, but how do you make it happen?

As with many life issues, there are legal and non-legal remedies, and even the legal remedies can vary depending on where you live.

Out of Order

State laws can vary on requests to remove your spouse from the home, but you should know that most courts are unwilling to bar a spouse from his or her home absent some demonstrating of existing or potential physical or emotional harm. Even if the home is in the person's name requesting the order, judges would rather the couple sort it out on their own or wait until a divorce is final before removing a spouse.

In California, family courts can issue an order excluding a party from the family dwelling on either an emergency or non-emergency basis. An emergency order requires the spouse requesting it to demonstrate:

  1. He or she has a lawful claim to possession of the premises;
  2. The other spouse has assaulted or threatened to assault him or her, or a person under his or her care; and
  3. Physical or emotional harm would result if the spouse is not barred from the home.

Courts in New Jersey have more leeway when deciding whether a spouse should be excluded from the marital home, but are still reluctant to issue such an order absent an existing restraining order.

In the Home

A court order isn't the only way to kick your spouse out of the house. It may be easier said than done, but working out a mutually agreed upon arrangement can be quicker and simpler than filing papers and attending court hearings. If discussions between you and your spouse are impossible, hiring a mediator may help.

In either case, having an experienced attorney on your side is essential. Even if you're not sure about filing for divorce yet, a good divorce lawyer can advise you on your rights and responsibilities during separation.

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