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Can My Spouse Refuse to Move Out During the Divorce?

Your marriage is over, but now there is the question of who will be moving out of the marital home, or if you will share the same residence until the process is finalized. What if you want your spouse to move out and he or she refuses?

Well, you can attempt to force the issue and even get a divorce attorney involved. However, assuming your spouse is relatively reasonable, you might be able to address this particular issue without taking such drastic steps.

In many cases, spouses are reluctant to leave the marital home because they view it as half theirs and refuse to give it up because they have the legal right to half of the marital assets.

In other cases, this refusal can be due to an emotional attachment, especially if you share children and the home has sentimental value because of the memories you created as a family.

Whatever the reasons might be, if you want your ex to leave, you might have to have a discussion regarding his or her needs, so you can make it happen. Absent domestic violence or child abuse in the home, it is not common for family courts to order either party to vacate the marital residence during a pending divorce action.

Legal separation vs. divorce

It can be especially difficult to get your spouse to vacate the marital residence if you are pursuing a legal separation over a divorce.  Many couples view a legal separation as a first, less drastic step, to take if they are unsure there has been a final and irretrievable breakdown of their marriage.  


When consulting with an experienced family law attorney, many spouses are surprised to learn that the legal separation process is virtually identical to the divorce process.  In fact, the same forms are used and the same disclosures are required. 

Both proceedings involve custody, support, and property division orders.  This includes the ability to characterize and divide the marital residence. The defining characteristic of a legal separation case is that at the conclusion of the matter, the parties are still legally married.  This proceeding is appropriate for parties who would not like to divorce for health insurance reasons, religious reasons, or inheritance reasons. 

Following a legal separation matter, if the parties eventually want to terminate their marital status, they will need to later initiate a divorce action. Pursuing a legal separation then a divorce can lead to added costs and delays. If one spouse views the legal separation as less permanent, he or she may not be ready to take the step of moving out of the marital residence.

Will you lose your property rights if you move out of the house?

a professional woman handing over the keys to a house to someone else after they've signed official documents

This is a common question asked at nearly all divorce consultations. Spouses want to know if vacating the marital residence will be deemed “abandonment” of some kind resulting in a loss of ownership. Moving out of the family home will not result in a loss of ownership.  

Regardless of which spouse (if any) moves out first during a divorce action, California family courts will divide the community property equity in a home equally.  This can be accomplished by one party buying out the other’s interest or by sale of the real estate.  The court will not permit one party to remain in the marital residence indefinitely without an order to compensate the other spouse for his or her community interest.  

How does the court determine who gets the house?

What happens if both parties want to purchase the community’s interest in the marital residence?  If both parties have the desire and ability to buy each other out of the marital residence, current occupancy may come into play when the court is deciding which party may do so.  In addition, the court will also consider the best interest of any minor children of the parties.  The purchasing party must also be able to show that he or she can remove the other party’s name from any encumbrance on the marital residence.  This often requires a refinance and ability to show income sufficient to qualify for the loan alone. 

If only one spouse resides in the community residence, the other may request Watts credits for one-half of the fair market rental value of the home. In addition, the spouse making the mortgage payment each month may request Epstein credits for separate property payments made to reduce the community property debt on the home. These credits should be discussed between parties when deciding which spouse will vacate the residence.

Can I lose child custody if I move out before the divorce is finalized?

Little black girl sitting on a bed looking unsure and her mother is kneeling in front of her comforting her

Oftentimes, if children are involved, it is advisable for neither party to leave the marital home until a written agreement is in place, especially if you hope to have shared custody.

If a husband or wife moves out before divorce, it could jeopardize their case for child custody, which is often why many refuse to leave. The sooner you can hash out even a temporary custody arrangement, the sooner your spouse can leave the marital home without the fear of handicapping their own case.

The best interests of the child always come first

The California family code requires courts to consider the best interests of the children above all else when making any custody and visitation orders.  Paramount consideration of the children’s best interests often results in an order that may not be “fair” to one party or the other.  A common scenario where this can occur is if one spouse vacates the marital residence prior to reaching any custody and visitation agreements.  

For example, one spouse may vacate the family home to reduce tensions between the parties and make things easier on the children.  That spouse may not be able to afford a home nearby so he or she moves to a more affordable area of town. 

In the meantime, the children still remain in their home, schools, extracurriculars, etc.  They do not build a new community in the moving parent’s part of town and spend much less time in that parent’s home due to school or other obligations.  It can be difficult for the moving parent to bring the children to and from school and also make it to work on time from their new place.  A new “normal” is established over the several months it takes for the parties to get a date for a custody hearing.

In this case, the children are now used to spending a significantly greater amount of time with the parent in the family home as opposed to the moving parent.  They have established a schedule with the moving parent for regular visits, but the time is not equal.  In the interest of stability and continuity, the court may order the current custody schedule to remain in place.  It can be difficult for the moving parent to get an order which disrupts the “status quo”.

What are my options if my spouse is abusive?

Upset woman leaning against a wall and crying

If you absolutely cannot wait for your spouse to leave and he or she refuses to, you do have legal options, especially if your spouse is abusive. As part of the restraining order process, you may request a “kick out order” which requires your spouse to vacate any shared residence.

In domestic violence cases, these protective orders are often granted, allowing you the chance to live in your marital home without the threat of emotional or physical abuse.

Consult an experienced divorce attorney

Regardless of if you were recently served up divorce papers or are simply in the process of considering divorce, the divorce attorneys at Cage & Miles are here to work with you throughout this process.

Our skilled and experienced legal team can guide you through the steps and limit the impact a divorce can have on your children, your future, lifestyle, and finances. We can represent you on a wide range of divorce matters, from contested divorce to child custody and property division.

Contact our office today at (858) 943-2060 to schedule a consultation with a knowledgeable member of our team.


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