Can a wife evict a husband if both names are on the mortgage?

UPDATED: May 2, 2011

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Can a wife evict a husband if both names are on the mortgage?

Wife’s name is first on the note but the husband has been making all the payments.

Asked on May 2, 2011 under Family Law, Georgia


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

No, she cannot do this.  Unless they are legally separated and the agreement states who has the right to exclusive possession and control of the premises, both spouses are viewed to be the legal occupants of the house.  This is true regardless of whose name that the title is held in, whose name is on the mortgage, or who is paying it.  Until the divorce is final (or a legal separation agreement is in effect), the house is still considered to be the lawful marital residence so each spouse has a right to live there.  Therefore, no measures should be taken to put the other spouse's out, such as changing the locks or removing their belongings. To do so would constitute both a civil and criminal offense.

Note:  A court order for could be issued immediately to put a spouse out of the house if they put the other spouse in fear for their safety.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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