Puja Sachdev | January 4, 2023 | Divorce

Going through the divorce process can be a challenging experience. Living in the same house with the person you are divorcing can be stressful for the entire family. In many cases, it is impossible for divorcing spouses to continue to live together.

However, what happens when your spouse refuses to move out of your home during a San Diego divorce proceeding? Can you kick your spouse out of the marital home in California?

Do Community Property Laws in California Allow You To Force Your Spouse Out of the House During a Divorce?

California is a community property state. With very few exceptions, all property and income acquired during the marriage are owed equally by the spouses. Therefore, even if your home is in your name only, your spouse may have an equal interest in the home if you purchased it during your marriage. 

However, there is a dwelling exception that allows you to make your spouse leave the home. Under California Family Code §6321, a court may issue an ex-parte order requiring a party to leave:

  • The family dwelling
  • The dwelling of the person who has custody, care, and control of a child
  • The party’s common dwelling
  • The other party’s dwelling

The purpose of the ex-parte order is to protect the spouse and/or a child from domestic violence. The court can force a spouse out of a dwelling, regardless of whose name is on the deed or any equitable interest. If your spouse refuses to leave the home after the court issues an ex-parte order to leave, you can call the police to have them remove your spouse from the home.

When Does a Family Law Court Issue an Order Removing a Spouse from the Home?

The code states specific situations in which the court may issue an ex-parte order forcing a spouse to leave the home. Those situations are:

  • The spouse being forced to leave assaulted or threatened to assault their partner or another party over who their partner has control, care, and custody.
  • There is evidence indicating an imminent threat of harm. The evidence can include witness statements, text messages, social media posts, letters, emails, and other items that show a severe risk of harm to the partner and/or child.
  • Unless the court issues the ex-parte order, the petitioning spouse would be subject to physical and/or emotional harm. 

You must also prove that you have the right to remain in the home for the court to issue an ex-parte order to remove your spouse. 

In some cases, the court might issue an order kicking out a spouse if the spouse has no claim to the home. That would happen if the home were the separate property of the spouse seeking to force their partner to move out of the home, and the partner could not claim an interest in the home through community property laws. This situation is uncommon, but it is worth talking with a San Diego divorce lawyer about all options if your spouse refuses to move out during a divorce. 

Why Do Spouses Refuse To Move Out During a Divorce in San Diego?

The reasons a partner might give for refusing to leave the home might seem legitimate, but not always. Common reasons a spouse refuses to move out during a divorce in San Diego include:

  • The person might not want to leave without their children.
  • A partner might fear losing an equitable interest in the home.
  • They might be unwilling to leave because of a strong emotional attachment.
  • A spouse might try to punish or hurt their spouse by refusing to leave the home. 
  • Refusing to leave the home might be a negotiating tactic the spouse wants to use when negotiating the division of property
  • The person might not have anywhere to go, or they might not have the financial means to support themselves if they leave home.
  • A partner might refuse to leave the marital home to delay the divorce process, intimidate their spouse, or gaslight their partner. 

Leaving the marital home does not automatically result in the loss of property rights. You might need to leave to protect yourself and your children if you are in danger. Talk with a San Diego divorce attorney as soon as possible to discuss whether you can force your spouse out of the house to move back in with your children. 

An experienced family law attorney in San Diego explains your legal rights and the applicable laws. They discuss your options for forcing your spouse to move out, including ex parte orders, orders of protection, and orders for the exclusive use of the home. An attorney can also help you negotiate a separation agreement to avoid litigation and law enforcement involvement when possible. 

Contact Our Divorce Law Firm in San Diego, CA

Contact our experienced San Diego divorce lawyers at San Diego Divorce Lawyers, APC today for legal assistance. Contact our San Diego office at (619) 866-3756 to schedule a free consultation.

San Diego Divorce Lawyers, APC
2851 Camino del Rio S #430
San Diego, CA 92108