March 1, 2013
A common question I receive in my office pertains to separation. Specifically, how do I get him or her out of the house? Obviously, if there is going to be a divorce, the parties have to start living apart and often the party who leaves just leaves. But what if you want or need the house the two of you live in now? Setting up a new apartment is expensive with deposits, the packing and moving, setting up utilities, etc. If the kids are in school, they most likely go to school in the district where the house is located so there is a good reason to believe that getting temporary custody of the children and the house go hand in hand.
Generally, you and your spouse should decide who leaves and who stays. While this is easier said than done – particularly if one party does not want the divorce – it is always better to tell the Judge what you can live with rather than have the Judge tell you what you will live with. If you cannot agree, then the only legal option is to file for divorce ask for temporary orders and let a judge decide.
The obvious problem with letting the Judge decide is that it can take several weeks after the divorce petition is filed to get in front of a judge for temporary orders. This can and most likely will be a very tense couple weeks, particularly if you are both living the the same house. Once at the hearing for temporary orders, the Judge will render orders designed to maintain the status quo during the divorce proceedings by establishing who moves out, who stays, who pays for what, and if there are children, who will have primary custody of the kids in the interim. In virtually all cases, the judge will order that one of the spouses will have exclusive use of the house on a temporary basis while the divorce is pending. Later, the house will be awarded to one of the spouses or sold – do not assume that temporary possession means you will win or lose ultimate possession of the house. Temporary orders are just that, temporary. And this same rule applies to temporary orders pertaining to custody of the children!
If you do not want to file for divorce, serve your spouse, and continue living with him/her until you can get a hearing, you have two options. The option you choose will depend upon the jurisdiction and your specific facts.
Except in certain cases involving family violence when a protective order is sought, a family court judge will not force someone to move out of the house without a hearing where both sides can be heard. This means that for a few weeks, you may be sharing the house with the spouse you are divorcing. This can be very awkward or even dangerous, so it might be best to temporarily move out and stay with a friend or family member until your court hearing. If you do so, the judge can order that your spouse move out and allow you to move back in. If you move to an apartment or another house, and your spouse is not listed on the lease or property deed, then he/she has no right to be on the property other than those rights you give him or her. The first time your estranged spouse appears on the property, call law enforcement, have your spouse notified their presence on the property is not welcome. Law enforcement should issue a written notification and the next time he/she comes on your property, it is criminal trespass.More commonly, the parties are both named on the lease or property deed and one party wants the other to stay away. This is a more difficult thing to accomplish. There are several ways it can be done, again, depending on the facts and circumstances.
If there is a history of family violence or some other compelling event, the innocent party can ask for a â€œkick-out orderâ€ as part of the Ex Parte Temporary Orders. This is accomplished by presenting the facts and some evidence to support the request to the Judge. It is called an Ex Parte order because the offending spouse will not be part of the proceedings, which is why the facts are usually set out in an affidavit and the evidence needs to be written, photos, or in some instances, an affidavit from another witness.
Even if the Judge grants the Ex Parte â€œkick-outâ€ the matter is not over. There must be another hearing with both parties present within 10 business days at which time the Judge will hear both sides of the story and determine if the order issued should remain in place, be dissolved, or replaced by different orders at the Temporary Orders Hearing.
Keep in mind, that if you honestly have a reason to kick the other party out of the house and the Court grants the request ex parte, while you may not win at the Temporary Orders Hearing, you have facts on your side that the Judge has now seen twice. However, if you make up a story and sign an affidavit twisting the facts to get the kick-out, you can expect to be kicked-out at the temporary orders hearing and the Judge will remember your struggle with honesty at every hearing after that point as well. Which is to say, the cost of being less than direct and honest with the Court at the ex parte stage is expensive.
Which brings us back to the original question? How do I get him or her to leave? You can ask. You can also plan – if he or she has a business trip coming up, serving him or her at the right time can solve a lot of problems. You can also serve him or her and change the locks – just keep in mind the law (ie: the Police you will call if the spouse tries to kick in the door) will tell you that your spouse has equal right to the house until the Judge says otherwise. More practically speaking, most spouses having been served and finding the locks change, go spend a couple nights on a friendâ€™s couch. Accordingly, how you accomplish the separation is dependent upon what works for you.
The best course of action is to talk to a lawyer sooner rather than later and specifically BEFORE you change the locks. Give us a call at 972-596-4000 for an appointment.