Evicting a Spouse From The Family Home During Divorce

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 16, 2021

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During a divorce, something that is generally considered a co-owned marital asset such as a home is still considered to be the property of both spouses, regardless of who pays for what, or whose name is on what legal documents. Therefore, it probably isn’t legally possible for a person to evict his or her spouse from the home during divorce proceedings in any state. In some states, however, it may be possible to evict a spouse during a divorce if there are allegations of abuse or other special circumstances apply.  

Eviction May Be Possible if The Home Is Separate Property

While many courts generally prohibit one spouse from evicting the other, such an eviction may be possible when the home is clearly owned by one person and not the other. However, this is more than likely not the case since the home is almost always automatically considered a marital asset. In order to show that the home belongs to one spouse, the spouse wishing to retain the home and evict the other will need to present evidence that the home is clearly separate property.

In a community property state, the home would only be considered separate property if it were acquired by the spouse prior to the marriage or as a gift or inheritance. Otherwise, all other income and assets gained during the marriage is assumed to be community property owned by both spouses.

In a common law property state, it might be even more difficult to show that the house is separate property, and it might matter less because showing the property is separate may not be enough to evict the other spouse. Common law property states use equitable distribution to divide property, which can sometimes include distributing one spouse’s separate property to the other spouse to ensure a fair division based on needs of both the spouses and other factors.

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A Spouse May Be Evicted if There Are Abuse Allegations

In the event of abuse, however, one spouse may be evicted even if the home is co-owned. The best way to go about removing an abusive spouse from the home during divorce proceedings is by filing for an order of protection, otherwise known as a restraining order.

The restraining order process starts by filing for a TRO, a temporary restraining order. If there is an urgent need to remove the spouse from the home due to danger to life or limb, an order called an emergency protective order can be applied for, usually by law enforcement officers who have responded to a domestic violence call or received a domestic violence complaint.

Regardless of the type of order, any order restricting contact between an abusive spouse and the other spouse will result in the abusive spouse’s inability to enter or even come near the home of the victimized spouse.

After Property Division

Another exception to the prohibition on eviction occurs when the divorce proceedings have progressed to a point where the property belonging to the couple has been divided. A home may be ordered sold and the proceeds divided between the spouses, or one or the other spouse may get possession of the home. At that time, if a spouse not in possession of the home lingers, it would be possible to remove the spouse by either enforcing the court’s order or by initiating eviction proceedings.


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