Few divorces have the spouses peacefully cohabit in the same household. When a divorced is file, emotion is typically running high, and it becomes impossible to live together. As such, one of the more common questions is whether or not a spouse may be asked to leave the household when a divorce is filed. For examples below, we will use a fictional couple named Doug and Judy.
First, we have to ascertain whether the home is separate property or community property? The home is separate property (meaning, belonging to only one spouse, let us say Judy) if the following is true.
- The home was purchased by Judy before marriage and never refinanced;
- The home was inherited by Judy or she received it as a gift; or
- Doug and Judy agreed to the home being Judy’s separate property in a valid agreement recognizable in Texas.
SEPARATE PROPERTY
If the home is Judy’s separate property, she has a right to ask Doug to leave at any time, before or after filing for divorce. If Judy has not yet filed a divorce and does not intend to do so anytime soon, she can treat Doug as a tenant at sufferance; that is, like a visitor who has overstayed his welcome. To get Doug to leave this way, Judy would have to give Doug a three-day notice asking him to leave, and if he still refuses, Judy can then file for an eviction in Justice Court much like she would against a tenant who has not been paying rent. Assuming Judy is successful at the eviction hearing, Doug is evicted.
However, Doug can try to fight back. Since Judy and Doug are married, the presumption is that all property is community property until the family Court says otherwise. Utilizing that presumption, Doug can file for divorce and the family court or the court overseeing his eviction may pause the eviction, leaving the matter to be decided via temporary orders (discussed below).
If the home is community property, then Judy has no immediate right to ask Doug to leave and must seek intervention from family court. In majority of marriages, the home then tends to be community property.
TEMPORARY ORDERS
The family court can order a spouse to leave the home. If Doug commits family violence against Judy or otherwise acts improperly, Judy can request an emergency order for him to leave at the time she files for divorce. This is called extraordinary relief. Typically, Judy would have to provide an affidavit detailing the abuse suffered by her at Doug’s hands. The Court may agree, ordering him to leave even without a hearing on the matter. This is called a “kick-out order.” It is not favored by the Court, and the allegations against Doug would have to be substantial. If the kick-out order is approved, then it is revisited in a hearing later when both parties are present, after Doug has been served, at which point the Court may prolong, drop, or modify the kick-out order.
Judy can also request that Doug leave the home in a non-emergency request, via a Motion for Temporary Orders, at which time the matter is considered at a hearing with all parties present.
TERTIARY METHODS
There are other, tertiary methods of having Doug leave. In keeping with our fictitious couple, if Judy commits family violence against Doug and the police come, the police may order Judy to leave the property temporarily. The police may even arrest Judy, and the criminal court is likely to issue a restraining order of its own as part of an ongoing criminal case.
Another alternative method is to receive a protective order from the family Court. If the Court agrees that Doug has committed family violence, the Court can order Doug to keep away from Judy, which effectively renders him unable to live in the home. A related option is a peace bond, which is more limited in scope. Both of these options are discussed in a separate blog entry.
CONSEQUENCES OF FALSE ALLEGATIONS
When doing this, one needs to keep in mind the potential consequences. If one spouse makes false allegations against the other in any of the actions above, they can face sanctions, contempt, or even criminal charges. In addition, false accusations will often taint the spouse’s credibility in any future legal proceeding.
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