For financial reasons, after a couple decides to separate, both spouses often remain living in the same marital home until the divorce becomes final. Unless couples can afford two separate homes on the same budget, continuing to live in the marital home during the divorce proceedings makes the most financial sense.
However, it is not uncommon that the problems leading up to the separation make it impossible for the couple to remain living together under the same roof during the divorce process. A spouse worried for his or her well being often wonders if something can be done particularly if they are not on the lease or title to the property. Thankfully, the answer is yes. California law allows a spouse to ask the Court for a “dwelling exclusion” commonly referred to as a “kick out order.”
Under California law, a dwelling exclusion is simply an order excluding one spouse from the family dwelling. It makes no difference who owns or is renting the property. Family Code§§6218(b), 6321(a), 6340(c).
If you are in a situation where your spouse in often yelling at you, calling you names, using profanity, making financial, physical or emotional threats, or generally making the living situation unbearable, you may file what is called a Request for Order asking the Court for an order granting you exclusive use of the home. Family Code§6321(a).
The spouse requesting this order must show the Court that, unless the order is granted, physical or emotional harm would otherwise result. §6321(a). This order can protect the applicant spouse or a person or child under his or her care.
It could take 1-3 months for a hearing depending on the Court’s calendar. If you believe it is unsafe for you to wait this long for an order, you can make a request for an emergency order (next-day) if the following apply: (Family Code§6321(b))
- The party who remains in the marital dwelling must have the legal right to that dwelling (i.e. be on title to the property or named on the lease). Family Code§6321(b)(1);
- The party to be excluded from the home has inflicted physical harm or has threatened physical harm against you or a person or child under your care. Family Code§6321(b)(2); and
- That unless the order is granted, physical or emotional harm would otherwise result against you or a person or child under your care. Family Code§6321(b)(3).
Your safety and/or the safety of your children is the most important factor when considering whether to request an order for a dwelling exclusion. The family law attorneys at Perez Hecht can assist you in making this difficult decision. Our experienced attorneys understand what you are going through and have the legal knowledge to passionately represent you in court. Call us at (818) 736-5920.
Peace like charity, begins at home.
–Franklin D. Roosevelt
