In my many years of practice, I have only stumbled upon two or three cases where divorcing spouses are content to live in the same household. These instances aside, when a divorced is file, emotion is typically running high and it is almost impossible to live together. Ergo, one of the more common questions we often get is whether or not a spouse may be asked to leave the household when a divorce is filed. The answer is – of course – complicated.
For the explanation below, I am going to use a fictional couple with the name of Doug and Judy. We will discuss the most common versions of events, including non-emergency and emergency orders, as well as alternative ways to have a spouse leave. This will not be an easy read, but I aim for it to be an informative one.
COMMUNITY PROPERTY OR SEPARATE PROPERTY?
First, we have to ascertain whether the home is separate property or community property? While this does not have as much a bearing on the outcome as you’d think, it is still important. 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
- Doug and Judy agreed to the home being Judy’s separate property in a valid agreement recognizable in Texas (see here for a blog entry on this).
Texas Family Code §3.001
SEPARATE PROPERTY – TREATING THE SPOUSE AS A “TENANT AT SUFFERANCE”
The 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. However, until a Court actually says Doug needs to leave, Doug does not technically have to. Here, it gets more complicated. Say the home is Judy’s separate property, and she wants Doug to leave. Judy asks Doug to leave, and Doug says “no.” 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, she can treat Doug like a visitor who has overstayed his welcome. To get Doug to leave this way, Judy has to give Doug a three day notice asking him to leave and labeling as a tenant at sufferance. If Doug does not leave within the three days allotted in Judy’s notice, Judy can then file for an eviction much like she would against a tenant who has not been paying rent, and eventually have the authorities remove him if he still refuses to leave voluntarily after the eviction is granted.
Doug can fight back, however. Since Judy and Doug are married, the presumption is that all property is community property until the family Court says otherwise. Texas Family Code §3.003(a). Using that presumption, Doug can ask the family Court (either in the divorce suit that Judy had already filed, or, if none has been filed then if he files his own) to stay (pause) the eviction until the Court confirms whether or not the home is community property or not. The family Court will normally agree to this request, pausing the eviction and leaving the matter to temporary orders (see below).
If the home is community property, then Judy has no right to ask Doug to leave. Or rather, she can ask, but Doug does not have to agree, because the home is communal property (i.e. both have a right to it) unless a Court states otherwise. In majority of marriages, the home then tends to be community property. If this is the case, treating the spouse as a tenant at sufferance does not apply.
The family court can ask a spouse to leave the home either in an emergency, or, after a hearing on the matter. If Judy is being abused by Doug, Judy can request an emergency order for him to leave when 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 heard with all parties present, after Doug was served with the motion and notice of the hearing date and time.
There are alternative methods of having Doug leave. One is if the police ask Doug to leave after they are called to the home if there is abuse or neglect. Sometimes the police will ask a spouse to leave for a night, or perhaps a few days, to cool things down. This is a temporary, band-aid effect. Sometimes the spouse is arrested for family violence if the police are called, and in this case, the criminal Court may render a restraining order keeping Doug away from Jury and/or the home while the criminal case is pending.
Another alternative method is to receive a protective order from the family Court. See here. 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 – again, see here.
POSSIBLE CONSEQUENCES TO KEEP IN MIND
When doing this, one needs to keep in mind the potential consequences. If Judy makes false allegations or claims against Doug in any of the actions above, she can face sanctions, contempt, or even criminal charges. In addition, if there are children involved, tact needs to be applied What if the children leave the home with the spouse? Finally, even if a spouse is asked or ordered to leave – even if they are at fault – this may give them the grounds to seek alimony. As such, no decisions should be made without talking to counsel (with the exception of someone being in danger, at which time, 911 should be called).