Marital problems can make living in the same house difficult at best, and dangerous at worst. Sometimes, couples going through a divorce wonder, “Can I kick my Husband/Wife Out of House During Divorce?”
Usually, a husband or wife cannot force their spouse to leave the martial home before the divorce is finished. However, like most legal issues, the question depends on the divorce’s specific facts. In certain situations, a husband or wife can force the other spouse out of the home.
Let’s uncover when a husband/wife can kick their spouse out of the house during divorce.
CAN I KICK MY HUSBAND/WIFE OUT OF OUR HOUSE DURING DIVORCE?
Homes that are purchased during a marriage are considered community property. Even when one spouse is exclusively listed on a home’s title or mortgage, homes purchased during the marriage are presumed to be community property.
A home that is purchased before the marriage is presumed to be separate property. However, a spouse may have a community interest in the separate home when money earned during the marriage is used to pay down the home. Additionally, a spouse may have a community interest if the home is improved during the marriage with community labor or money.
Even when a home is purchased before the marriage, in most divorce cases, both spouses have a claim to the marital home. In situations where one spouse exclusively paid for the home, and exclusively appears on the home’s title/mortgage, the home may be considered community property.
One spouse cannot kick the other spouse out of a home that is considered community property. In other words, Husband/Wife needs a court order to force the other spouse to leave the marital home.
HOW CAN I GET A COURT ORDER TO KICK MY HUSBAND/WIFE OUT OF HOUSE DURING DIVORCE?
In most divorce cases, a husband/wife cannot kick the other spouse out of the marital home. With that said, there are exceptions to this general rule. An exception occurs when an act of abuse has occurred, and one spouse poses an immediate threat of danger.
RESTRAINING ORDER OF PROTECTIONS CAN FORCE ONE SPOUSE OUT OF THE HOME
The most common court order that forces one spouse from the marital home is a Temporary Restraining Order (TRO). A TRO is granted when one spouse files a Petition for Order of Protection that provides probable cause that an act of abuse has occurred.
During marriage, a TRO often forces one spouse to leave the martial home. The TRO usually prevents one spouse from having contact with the other spouse.
Are you going through a divorce? Do you want to kick your husband/wife out of the house during divorce, based on abuse? Does your spouse pose an immediate threat of harm to you or your family? If so, you can file a Petition for Order of Protection. If granted, the TRO can force the abusive spouse out of the marital home.
DO I HAVE TO MOVE OUT IF MY HUSBAND/WIFE TELLS ME TO LEAVE DURING DIVORCE?
No. You do not have to leave the martial home if your spouse tells you to leave. Even when a home is purchased before a marriage, both spouses have potential claims regarding the home. In other words, no one can force you to leave the marital home without a court order.
With that said, domestic abuse during divorce commonly leads a Restraining Order of Protection being requested. When abuse is present, the court can enter a temporary order that forces spouse to leave the marital home.
When a temporary restraining order of protection is not entered, either spouse can file a motion. In doing so, either spouse can request sole use of the martial residence. Alternatively, either spouse could potentially file a request for eviction. Nevertheless, a husband/wife cannot force the other spouse to leave without a court order.
DO YOU WANT TO KICK YOUR HUSBAND/WIFE OUT OF THE HOUSE?
Are you the victim of domestic abuse? If yes, does your spouse pose an immediate threat of harm to your or your children? In this situation, you can file a restraining order of protection. If granted, a temporary order can force your abusive spouse out of the marital home.
Here are some ways to demonstrate abuse:
- Contact the police or CYFD when abuse is present;
- Take photographs that demonstrate the abuse;
- Save emails, texts, letters that support abuse;
- Document the abuse through video; and
- Gather witnesses that have personally observed the abuse.
In some situations, domestic abuse boils down to he said, she said. Any evidence can tip the scales towards a restraining order of protection being entered. When entered, the temporary order can protect the victim from family violence and domestic abuse. In doing so, the temporary restraining order of protection can force one spouse out of the martial home/house.
DO I WAIVE MY INTERETS IN THE MARITAL HOUSE/HOME BY LEAVING?
No. You do not waive your potential interest in the marital home by leaving. Moreover, you are not waiving your claim to personal possessions and property by leaving the home.
Are children in involved with the divorce? If so, leaving the marital home without your children can impact your custody and visitation case. Accordingly, it is essential to speak with an experienced Albuquerque custody and divorce attorney/lawyer before leaving the martial home.
HOW CAN I GET MY WIFE/HUSBAND OUT OF THE HOUSE IS SHE/HE REFUSES TO LEAVE?
In New Mexico, a wife/husband usually cannot force the other spouse out of the house. The exception occurs when there is a valid court order. Examples of court orders that force one spouse out of the home include:
- Restraining Order of Protections;
- Order for exclusive use of the marital residence; or
- Eviction order.
HOW CAN I GET MY HUSBAND/WIFE OUT OF THE HOUSE IF HE/SHE REFUSES TO LEAVE?
Are you going through a divorce in New Mexico and your husband/wife refuses to leave the home? If so, in most cases, you will need a court order that forces your spouse to leave the marital home. The three most common orders are: (1) Temporary Order of Protection, (2) Order granting one spouse sole use of the home, or (3) Eviction order.
In most cases, you cannot force your spouse out of the home unless you have one of the three orders above.
BEST/TOP DOMESTIC VIOLENCE LAWYERS/ATTORNEY DURING DIVORCE
Are you going through a divorce that involves domestic abuse? If yes, are you seeking to force your spouse out of the marital home? In most cases, forcing your spouse out of the martial home can be challenging. Call a tested and trusted Albuquerque divorce lawyer/attorney. Call (505) SANCHEZ today.
