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Can I kick out my spouse during the divorce?

by | Sep 17, 2021 | Child Custody, Divorce |

Some people like to take action and initiate real change. So it stands to reason that some want their spouse to leave once it’s clear that the marriage is broken and they should file for divorce. If the couple has a fiery or confrontational relationship, this seems like a logical way to reduce stress. If a spouse feels they are in danger, they should leave immediately and get legal help.

Community property is shared

Unless there is a prenuptial agreement stating that the house belongs to one of you, the family home is rebuttably presumed to be a community asset shared by both spouses. So, neither spouse has the right to evict their soon-to-be former spouse and co-owner. It is even true if one spouse bought the home before the marriage; it is typical for cars, homes and other assets jointly maintained to become mingled during the marriage.

Community property (known in many other states as marital property) is a list of assets shared or accumulated during the marriage. There are exceptions, but assets are shared and mingled even if the car or home was originally in one spouse’s name. Texas generally divides community property assets 50-50 in the absence of proven fault grounds, but the division is “just and right” and not “half and half”.

Other ways to get them out

A spouse may not have the right to evict them, but there may be other solutions:

  1. Make an offer where they would get a community asset(s) of similar value and put it in writing with the help of your own attorney.
  2. Draw up an agreement with the help of your own attorney.
  3. Get a temporary order for one party to vacate before the divorce is final (and the division of assets that may include the home is complete).

Leaving can be a mistake

The spouse’s attorney may advise them not to leave the home until the divorce is final because it may be seen as relinquishing the home. An attorney may also advise you not to leave the home and children under the spouse’s care because this could impact your custody rights.

Finding a fair solution

It may be best for the family if the parents live apart as soon as possible. Spouses trying to negotiate this without sacrificing their rights will often find it helpful to work with an experienced Board-Certified Family Law expert attorney who understands all that is at stake.

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