I am preparing for my third family law trial during this pandemic, so writing my articles had to be “paused.” But this issue is something I have never written about, and it is something that affect those that have a hard time “kicking” out a spouse from the home.
The California Family Code allows courts to issue orders removing a spouse from a home. These are commonly referred to as “kick out” orders or “exclusive use and possession” orders. Certain circumstances compel a court to make these kinds of orders.
Getting Your Spouse to Move Out of the House
Getting your spouse to move out of the house may be more difficult than you would hope. However, there are certain circumstances that warrant the court to order a spouse to move out of the house during a divorce proceeding. For example, if you have filed for divorce and suffer from domestic violence, you may seek a move-out order.
Obtain A Move-Out Order to Get Spouse Out of House
Move-out (kick-out) orders are granted in situations where domestic violence is occurring. The order is issued to protect the spouse and children from the abusing spouse. There are certain legal requirements that must be satisfied to get a move-out order:
Ex Parte, Emergency Move-Out Request
California Family Law Code section 6321 states the following in obtaining an ex parte move-out order:
The court may issue an ex parte order excluding a party from the family dwelling, the dwelling of the other party, the common dwelling of both parties, or the dwelling of the person who has care, custody, and control of a child to be protected from domestic violence. The court determines the terms and conditions of the order, regardless of which party holds legal or equitable title or is the lessee of the dwelling.
The court may issue an order under subdivision (a) only on a showing of all the following:
(1) Facts sufficient for the court to ascertain that the party who will stay in the dwelling has a right under color of law to possession of the premises.
(2) That the party to be excluded has assaulted or threatens to assault the other party or any other person under the care, custody, and control of the other party, or any minor child of the parties or of the other party.
(3) That physical or emotional harm would otherwise result to the other party, to any person under the care, custody, and control of the other party, or to any minor child of the parties or of the other party.
Regularly Noticed Motion Move-Out Request
California Family Law Code section 6340 states the following in obtaining a noticed move-out order:
The court may issue any of the orders described in Article 1 (commencing with Section 6320) after notice and a hearing. When determining whether to make any orders under this subdivision, the court shall consider whether failure to make any of these orders may jeopardize the safety of the petitioner and the children for whom the custody or visitation orders are sought. If the court makes any order for custody, visitation, or support, that order shall survive the termination of any protective order. The Judicial Council shall provide notice of this provision on any Judicial Council forms related to this subdivision.
If you are in immediate danger from your spouse and/or children are at risk of violence, always contact the police and request an emergency protective order. Subsequently, file an ex parte, for a temporary restraining order. The requests will include a move out order among other things that may be relevant to your case.
The filings will need to be done quickly and effectively. A well-devised plan is necessary and having an experience litigator in both the criminal and family area is critical. If you need assistance, you may email me at [email protected] or call my office at 310-601-7122. Keep staying safe and I wish you and your family and friends, a well-deserved fun summer break especially all the kids!
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