The answer to the first part of that question is this: Yes, you may leave the marital home. If you do leave, take the children with you, or make sure you have a child custody/visitation plan in place so that you are assured of spending time with your children. Further, make sure that the new home has a child-friendly environment -- toys, photos, stuffed animals, etc. If you are the non-earning spouse and decide to leave the marital home, you run the risk of having your standard of living reduced. Generally speaking, living in the marital home provides a higher and nicer living standard than finding a temporary rental. And, of course, one needs to furnish a new place, and that can be expensive.
The second part of the question with regard to making your spouse leave the marital home is this: In California divorce law, if you are not able to have your spouse voluntarily leave the marital residence, in order to have your spouse “kicked out” of the residence, you must first prove to the court that your spouse has inflicted violence upon you, the children, or anyone else in the marital home, prove there is a threat of violence, or that your spouse is causing extreme emotional distress. Each of these items can be very hard to prove -- especially extreme emotional distress. If you can not agree on who is to stay and who is to leave the marital house, you just may be stuck in it together until such time as a settlement is reached or the court determines if the home should be sold or awarded to one or the other party.
Stacy D. Phillips is a co-founder of Phillips Lerner, A Law Corporation, which specializes in high-profile family law matters. She is co-chair of the Women's Political Committee and a member of Divorce Magazine's North American Advisory Board. She can be reached at (310) 277-7117. View her firm's Divorce Magazine profile here.
Certified Divorce Financial Analyst
Business Valuators / CPAs