Divorce & Annulment

questions & answers

Question: I own my home as sole and separate property and I am filing for divorce. My husband refuses to leave. What can I do?

Answer:

The cleanest (and least hostile) way to get him out is to file a motion for temporary orders under Family Law Rule 47 asking the court to exclude him from the residence. If the situation is urgent, and especially if significant domestic violence is involved, you should opt instead for an emergency motion under Family Law Rule 48, which allows you to apply to the judge for immediate relief without advance notice to the other party.

I will warn you now that courts do not look with favor on the latter, mostly because it gives no opportunity for your husband to present his point of view. Our justice system is built on the principle of each party having his/her fair opportunity to present his/her case *before* the judge makes a ruling. These kinds of emergency motions fly in the face of that ideal, so you'd better be prepared to back it up.

In particular, you should remember that Rule 48 will require you to show (among other things):
(1) you will clearly suffer irreparable injury or property loss/damage without immediate court intervention; and
(2) what efforts you made to notify the other party of your motion, or why notice should not be required.

Of course, if domestic violence is involved, you can apply for a protective order anyway, and one remedy under that statute is to award the petitioner exclusive possession of the residence. I would caution you against applying for a protective order just to kick your husband out of the house. Only try this if you are truly the victim of domestic violence, and need that kind of prompt assistance.

Your other (more drastic) alternative is to call the police, show them a copy of the deed (which presumably shows you as the sole title holder to the residence), and ask them to remove him right away. This presents three problems that come immediately to mind. First, the police may refuse to help, citing the fact that "it's a civil matter," and advising you to "tell it to the judge." This sort of thing happens all the time (sometimes more than it should), and if it happens to you, you will be left sitting in a house with a very angry husband whom you are trying to divorce.

Second, even if you succeed in having him removed, he will then clamor for the opportunity to re-enter the residence to remove his personal belongings, and may even indulge in a little self-help (i.e. sneak back into the house when you are not home), whereas if you handle it through the courts, the judge can address this issue.

Third, if you have children in the home, you run the risk of upsetting or even traumatizing them with officers running around and shoving loved ones out the door into the night. People have different ideas about this problem, but I think most would agree that no child should have to witness something like this - no matter how much one spouse loathes the other.