I just finished finalizing a settlement that prevented a client from going to trial this week. One of the issues at the inception of the case was who would move out of the family home? Here are some general tips, especially if the home was purchased prior to marriage by one of the parties.
If you and your spouse bought the home together during a marriage and there are no issues of domestic or family violence, it would be very difficult to have a spouse move out. If there is abusive behavior towards you, your children and even pets, a restraining order should be requested. A domestic violence restraining order, will include but not limited to, a “move out” order for the abusive spouse. The court can order the spouse to leave the family residence and stay away from all protected persons/pets.
What if the home was purchased by you on your own prior to marriage, title is in your name, and you have made all payments to the home during marriage? Under these circumstances, your spouse has no legal claim to be in the home. The home will likely not be deemed community property but nonetheless, a court order may still be required.
California Family Code Section 6321
The legal means of forcing a spouse to move out of the couple’s residence in California makes it possible for the court to issue an “ex parte order” that excludes an individual from the place they reside with the family, the other spouse’s dwelling, or the home of the partner who cares for the children. Such an order effectively demands that a spouse move out of the specified dwelling, even if they are the lessee or the party that holds the legal title to the residence.
The “kick out” order, as an exclusion order is sometimes called, is a document that is legally enforceable and puts one party in sole possession of the couple’s residence in the event of domestic violence and other such emergencies. If a spouse refuses to leave the home after a dwelling exclusion order is in place, the other party may call the police on them, and they may face arrest and other legal penalties.
How Can a Spouse Get a Legal Order to Kick Their Partner Out?
If an individual feels it is necessary to kick their spouse out of the house at any time, it is crucial to hire an attorney who can submit the application for the ex parte order to the court. The court does not allow the spouse to present evidence to oppose the application, so it is vital to provide sufficient evidence that the situation is truly an emergency. Some of the reasons California courts grant exclusion orders include the following:
- The spouse has threatened to or actually assaulted their partner or another party under their care, control, and custody.
- There are indications of imminent harm. This may include letters, texts, videos, and sworn witness statements that show the individual, their child, or another party under their care is at severe risk of being hurt by the spouse.
- The individual would be subject to emotional or physical harm without the order. The California Family Code offers a lower standard of proof in such situations, meaning the person doesn’t need to prove an emergency. If this is the case, however, they must prove there is a dire risk of a problem without the order.
The individual who requests the order must also prove that they have a legal right to possess the home. Once these requirements are met, the court can grant such an order, and it typically goes into effect immediately. A third party, such as an attorney, then serves the spouse with the order as a measure to protect the safety of their partner.
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. Then, immediately file your request for a domestic violence restraining order, and do not forget to include a move out order among other things that may be relevant to your case. These are complicated matters, and you must follow the court procedures to ensure that your rights are maintained. Call my office at 310-601-7144 or email me directly at [email protected]
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