Can I Make My Spouse Move Out During My California Divorce?

Can I Make My Spouse Move Out During My California Divorce?

California divorce can be emotionally difficult, especially when exes have to live together during the process. Sometimes, the situation may be too contentious or complicated for former spouses to cohabitate while going through their case. Someone in this situation needs to know: Can I make my spouse move out during my California divorce?

Who Gets the Home in a California Divorce?

California is a community property state meaning that, outside of certain limited exceptions, what a couple earns and acquires during a marriage belongs to each person equally. during a California divorce. For example, if you and your former spouse bought your home together while married, then each of you will have 50/50 ownership rights. Therefore, when it is time to divide this asset, these ownership interests will need to be taken into consideration.

Who Gets to Live in the Home During a California Divorce?

Once a California divorce is initiated, it’s common for former spouses to want to live separately. Under ordinary circumstances, either party can live in the home during a California divorce. For one person to stay, the party will need to petition the court for exclusive use and possession of the marital residence.

California divorce courts routinely grant temporary exclusive use and possession of marital residences during a divorce. If the couple has minor children, the court will typically grant use and possession to the parent who will be caring for the kids most of the time.

Exclusive Use and Possession and Domestic Violence

The court can consider whether there has been abusive behavior during a marriage when deciding on exclusive use and possession. California law provides that the court “may issue an ex parte order excluding a party from the family dwelling, the dwelling of the other party, the common dwelling of both parties, or the dwelling of the person who has care, custody, and control of a child “to protect the habitants from domestic violence. This type of order can be issued regardless of the excluded party’s legal ownership or right to access the property.

Who Pays for the Mortgage or Lease?

One practical question that can arise when a party has exclusive use and possession is who pays for the mortgage or lease? For example, suppose Spouse A moves out and continues making the mortgage or lease payment while Spouse B has exclusive use and possession of the marital residence. In that situation, Spouse A could place Spouse B on notice of their intent to seek credit for their payment for this community asset expense. Spouse A could also notify Spouse B of their intent to seek reimbursement credit for Spouse B’s post-separation use of the marital asset. These formal requests are known as Epstein Credits and Watts Charges.

Managing community asset use during a California divorce can be complicated, and it’s essential to have accurate information and guidance. Working with a California divorce attorney can help you understand your residential options during and after your case. In addition, your counsel can help you evaluate the pros and cons of exclusive use and possession of the marital residence and help you determine your next steps.  

Contact an Experienced California Divorce Attorney

The attorneys at the Law Offices of Judy L. Burger are experienced California divorce attorneys who can help you during all phases of your divorce or custody matter. Our firm assists clients along California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Marin, San Jose, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities. Call us at 415-293-8314 to schedule a private appointment or visit our website.


Font Resize