How can i get my husband out of the house if he refuses to leave is the question related to your living situation during a divorce proceeding?
Divorce is a stressful and energy-draining process and it is often uncomfortable and unpleasant to be in the same house with your spouse while the divorce is pending.
However, there is a big difference between unpleasant and intolerable. If living at your own house is becoming a nightmare and you have a concern about your or/and your kids’ safety – it is a time to think about how can i get my husband out of the house if he refuses to leave.
How can i get my husband out of the house if he refuses to leave- taking legal action in California court
There are two types of legal actions you could take when you are considering how can i get my husband out of the house if he refuses to leave. The first one is getting your husband out of the house on an emergency basis. The second is getting him out of the house on non-emergency bases.
How can i get my husband out of the house if he refuses to leave- emergency bases
Under California Family Code section 6321 (a) , you can get your husband out of the house in order to protect yourself, your children, or any people who live with you from domestic violence. In order to do it, you need to file a Domestic Violence Restraining order to show to the court. In order to do this you need to prepare a written declaration explaining the last incident of abuse as well as other incidents of abuse and testify at the court. Although the burden of prove for a domestic violence restraining order is low, by a preponderance of the evidence, it is important to show to the court evidence that your spouse is physically and/or emotionally abusive Such evidence could be texts messages, photos, you can bring witnesses to testify.
how can i get my husband out of the house if he refuses to leave- non-emergency bases
Under California Family Code section 6340(c) the judge may issue an order getting your husband out of the house if the court finds that “physical or emotional harm would otherwise result to the other party, to a person under the care, custody, and control of the other party, or to a minor child of the parties or of the other party.” For non-emergency order to leave the house, you should show assault or threatened assault. You have to be clear that assault is not the actual application of force on your body, but it is an attempt to commit bodily harm or an act that causes you to apprehend that imminent bodily harm could be committed.
Title/ leaseholder – how can i get my husband out of the house if he refuses to leave
There is another requirement that should be considered when you are thinking about how can i get my husband out of the house if he refuses to leave. Under the Family Code, a spouse who will live in the house must have “a right under color of law to possession” of the house. It means you should be on the deed or leaseholder. However, in practice, if you live in the house with your husband, most of the judges will allow you to stay even if your name is not on the deed/ lease while the divorce is pending or for a certain period of time depending on circumstances, especially if it is an emergency order based on the domestic violence.
Additional Legal Options to Remove a Spouse from the House in California
If living with your husband has become intolerable and he refuses to leave, there are legal avenues you can explore under California law to address this situation.
Obtaining an Exclusive Use and Possession Order
You can request an exclusive use and possession order from the family court, temporarily granting you the sole right to live in the marital home during the divorce proceedings.
Grounds for an Exclusive Use and Possession Order
To obtain this order, you must demonstrate that having your husband remain in the house would cause significant emotional or physical harm. Evidence can include:
- Documentation of Harassment or Threats: Records of threatening messages, emails, or other communications.
- Witness Testimonies: Statements from friends, family members, or neighbors who have witnessed abusive or threatening behavior.
- Police Reports: Reports filed with local law enforcement documenting incidents of harassment or threats.
Filing a Motion for Temporary Orders
During divorce proceedings, you can file a motion for temporary orders addressing various aspects of your living situation, including exclusive possession of the marital home. These orders can cover:
- Child Custody and Visitation: Ensuring the safety and well-being of your children.
- Spousal Support: Financial support if you are financially dependent on your husband.
- Use of Property: Temporary exclusive use of the home, vehicles, and other essential property.
Mediation and Negotiation
Mediation or negotiation might lead to an agreement where your husband voluntarily agrees to move out. Mediation involves a neutral third party helping both spouses reach a mutually acceptable agreement, which can be less adversarial and faster than court proceedings.
Considering a Move-Out Agreement
If the situation is not urgent or does not involve domestic violence, negotiating a move-out agreement with your husband can outline terms and timelines for him to leave the marital home, addressing issues such as:
- Division of Expenses: How household expenses will be divided until the divorce is finalized.
- Visitation Schedules: Temporary arrangements for child visitation.
- Property Use: Temporary use of vehicles, furnishings, and other shared property.
Understanding Legal Implications
Forcing your husband out of the home without a legal order can have serious implications, including accusations of unlawful eviction, which can negatively affect your divorce proceedings.
Consult with a Family Law Attorney
Navigating the legal processes to remove your husband from the house can be complex. Consulting with an experienced family law attorney can provide you with guidance and representation to protect your rights and achieve a favorable outcome. An attorney can help you:
- Prepare and File Necessary Documents: Ensure all legal paperwork is correctly filed and presented to the court.
- Gather and Present Evidence: Collect and organize evidence to support your case for exclusive possession of the home.
- Represent You in Court: Advocate on your behalf during hearings and negotiations.
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