At the beginning of the separation or divorce period, a couple often realizes that they are unable to continue to reside in the same home. Understandably, emotions are running high and one or both spouses may be feeling angry or hostile.
Different factors come into play in determining whether one party should move out of the home. Generally speaking, both parties have the equal right to occupancy of the home: neither party has a greater right than the other. Neither owner is allowed to change door locks or the alarm codes without the other party’s consent.
The situation becomes more difficult when minor children are involved. Neither parent may want to leave for a number of reasons. The parent who is the primary caretaker may not have the financial ability to vacate the home with the minor children, and the other parent (who may have the financial ability to obtain his/her own home) may be unwilling to voluntarily leave the home because that may mean leaving the children until there is a custody agreement.
The only way to force your spouse to move out is by obtaining a domestic violence restraining order containing a request that he/she be excluded from the residence. In order to obtain this order, you must show that you’ve been a victim of domestic violence as defined in the California Family Code. You can represent yourself or retain counsel to assist you. In an emergency situation, you should contact your local police immediately.
Jon Summers is a Partner with Freid and Goldsman, and has 23 years experience practicing family law.