What can I do if I’m separated and paying for a rental but now my wife won’t leave as she agreed to?

UPDATED: Sep 30, 2022

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What can I do if I’m separated and paying for a rental but now my wife won’t leave as she agreed to?

My wife and I wrote a marriage settlement agreement upon separation while waiting to be eligible to file for divorce. Part of the agreement was that she would leave the apartment I am paying for at the and of January so that I could return Feb 1st. She has already broken other aspects of our agreement and just now informed me that she will not be moving out and that I will not be permitted to return. The lease is until June. I must continue to pay or it will hurt my credit. Is there anything I can do in order to legally return?

Asked on January 22, 2016 under Family Law, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

She cannot keep you out:
1) She is in breach of her agreement, which means she cannot use the agreement as any grounds to exclude you.
2) As a general matter, spouse A cannot keep spouse B out of marital property--i.e. out of real estate they own or lease as spouses.
3) If you pay for the space (pay the rent), then someone who is not a tenant (not paying rent for exclusive possession) cannot exclude you.
4) The agreement would not have been enforceable anyway against you since there is no consideration (anything of value) to bind it--it was just an unenforceable promise you made.
You may move in. If she doesn't want to live with you, she  may move out.

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 AttorneyPages.com 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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