Home Divorce Lawyer How to Legally Evict Your Spouse in California

How to Legally Evict Your Spouse in California

38
0

So your marriage has gone sour and you want to evict your soon-to-be ex-spouse from the marital home. While this is an emotionally difficult situation, it’s important to handle it legally and peacefully. This guide will walk you through the proper steps to evict your spouse in California.

Marital Status and Property Rights Impact the Eviction Process

The first things to determine are your marital status and property rights. These factors dictate the legal process you must follow:

Married: If you’re still legally married, you have a “community property interest” in the home even if only one spouse is on the title. This means you both have equal rights and neither can force the other to leave without filing for divorce or legal separation first.

Legally Separated: A legal separation agreement or court order is required to evict a separated spouse. The agreement must state who has exclusive use of the home.

Divorced: A divorce decree granting one spouse exclusive possession of the home is needed to evict the other. Make sure the decree is finalized before starting eviction proceedings.

Domestic Partnership: Registered domestic partners have similar property rights as married couples. One partner can’t evict the other without a court order dividing assets.

Title Only in One Name: If only one spouse is on title and the mortgage, they technically have the right to evict. However, the other spouse likely has occupancy rights as a tenant that require proper eviction procedures be followed.

Determining your relationship status and property ownership is critical for selecting the correct legal process. Consulting a family law attorney can help clarify your options.

File for Legal Separation or Divorce First

If you’re still married or in a domestic partnership, the only way to forcibly remove your spouse is by filing for legal separation or divorce and requesting exclusive use of the home. The filing must include a request for temporary exclusive possession:

Legal Separation: File a Petition for Legal Separation (FL-410). Request exclusive temporary use of the home on form FL-300.

Divorce: File a Petition for Dissolution (FL-100). Include a request for exclusive temporary possession in the petition or file it separately on FL-300.

The court will hold a hearing where both sides can argue their positions. If granted exclusive possession, serve your spouse notice to leave the home by a certain date or face an unlawful detainer (eviction) lawsuit. Get a process server to deliver documentation.

Serve Proper Notice to Vacate

If filing for legal separation or divorce didn’t result in a court order for your spouse to vacate, or you’re already divorced/legally separated, you’ll need to formally notify them to leave through a “Notice to Quit.” Key points:

Form: California has specific forms for Notices to Quit depending on how long the tenant has occupied the property. Using the proper notice form is critical.

Service: Have the notice personally served to your spouse by a process server or sheriff. Posting it on the door isn’t sufficient. Get a proof of service signed.

ALSO READ:  Understanding Abandonment in a Texas Marriage

Timing: The notice period ranges from 3 to 30 days depending on length of occupancy. For a spouse, 30 days is generally recommended to avoid claims of retaliation.

Grounds: State one of the acceptable reasons for eviction like violating lease terms, creating a nuisance, or that you want to occupy the unit yourself.

Document serving the notice carefully. If they fail to vacate, you can then file an unlawful detainer (eviction) lawsuit.

Filing an Unlawful Detainer Lawsuit

Unlawful detainer, also known as eviction, is the legal process for removing a tenant or spouse who refuses to leave after proper notice. Here are the basic steps:

Filing: Complete eviction court forms (SUM-130/SUM-140) and file with your county’s court along with the proof of service of the notice to quit. Pay the filing fee.

Service: Have the court summons and complaint personally served to defendant (your spouse). Service must occur before the notice period expires.

Response: Defendant has 5 days to respond in writing or risk default judgment. If they do respond, a trial will be scheduled.

Trial: Present evidence that proper notice was given and they failed to leave. If successful, the court will issue a writ of possession to have them removed.

Eviction: Call the sheriff to schedule a lockout if your spouse fails to leave after the writ is issued. You’ll regain possession of the home.

While complicated, following the eviction process properly protects your legal rights to remove a refusing spouse from the marital home. Seek attorney guidance if possible.

Additional Considerations When Evicting a Spouse

There are a few other important factors to be aware of:

Domestic Violence Restraining Order: A DVRO overrides any eviction or lockout if it awards your spouse temporary possession. Coordinate timing carefully with DVRO process.

Personal Property: Your ex has a right to retrieve necessary personal effects if evicted. Allow access under supervision or hire movers to pack and remove as applicable.

Children: Consider custodial arrangements if minor kids are involved. Avoid carrying out eviction when kids are present if possible. Coordinate child visitation.

Alternative Dispute Resolution: Try mediation if you want a peaceful resolution first before filing court documents. An objective third party can help find agreement.

Fair Housing Laws: Federal and state fair housing laws prohibit discriminating against a protected class like gender or using the eviction to retaliate against complaints your spouse made.

Financial Responsibility: Be aware you may still be financially responsible for your ex-spouse in some situations, such as debts in both names or spousal support obligations depending on divorce terms. Don’t assume evicting removes all duty of care.

Carefully navigating the legal and emotional aspects of evicting a spouse is important for a smooth transition during an already difficult time.

When an Uncontested Eviction May Still Occur

In some cases, evicting a spouse occurs without significant opposition if handled respectfully upfront:

Mutual Agreement

Discussing the eviction civilly in a mediated setting or with attorneys present sometimes leads both parties to rationally agree one will peacefully move out by a set date, avoiding formal legal action altogether. This cooperation is often smoothest.

ALSO READ:  What to Do If Your Spouse Refuses to Sign Divorce Papers

No Valid Defense

If proper procedure was followed to the letter – providing the required notice period accompanied by a qualifying reason to vacate like owners occupying the unit themselves – then the spouse would have little defense in an unlawful detainer action anyway. Recognizing a lost cause encourages voluntary compliance.

Timely Relocation

Providing ample time to find alternate housing, such as the maximum legally allowed notice period, allows a cooperative ex-spouse to smoothly transition independently rather than digging in heels out of anger or spite. The high road often smooths the low road.

Prior Residence Available

If the departing spouse already maintains another residence they can immediately reside in, such as keeping an apartment or moving back home, this removes practical barriers to vacating that could otherwise spark conflict or objections to the eviction.

Spouse Seeks Fresh Start

Occasionally an amicable splitting spouse actively wants independence from the shared home and its memory too, seeing the eviction as blessing in disguise to begin anew rather than an attack. Cooperation arises from mutual interest in closure.

Focus on Co-Parenting

When minor kids are involved, prioritizing stable co-parenting above all else encourages both sides to compromise where reasonable to achieve that stability rather than prolong conflict through obstructionist moves that pit sides against each other unnecessarily long term.

By approaching the eviction respectfully, providing sufficient preparation time and maintaining the high road whenever possible, an otherwise contested eviction can sometimes proceed consensually even with an unwilling occupant, if appropriate conditions and motivations align cooperatively rather than adversarially on both sides.

Alternatives to Forcibly Evicting a Spouse

While eviction remains an option, certain alternatives may achieve your goals with less conflict:

Cash for Keys Agreement

Offer your spouse a severance package to peacefully vacate by an agreed date. This incentivizes cooperation and allows both to exit the relationship with dignity. Consult attorneys on fair terms.

Mediated Property Settlement

Work out a division of assets including the home through mediation. Your spouse may willingly trade equity in the home for other assets of equal value, removing their stake.

Sell the Home

Put the property on the market and split sale proceeds agreed percentage. This mutually terminates ownership and enables independent fresh starts elsewhere for both parties.

One Spouse Buys Out the Other

Negotiate an agreement where one spouse uses refinancing or personal funds to purchase the other spouse’s share of equity, becoming sole owner. Clean contractual transfer of ownership.

Rent to Ex-Spouse Temporarily

Draw up a rental agreement so your ex can stay until resettling, for a set term. This bridges the transition while clarifying the shift from spouse to landlord-tenant roles. Specify rent amounts and mutually agreeable move-out date.

Pursue Legal Separation First

Filing for legal separation sets the stage to request exclusive use of the home in a less adversarial manner than divorce. The court may order your spouse to vacate as part of the separation agreement to avoid drawn-out disputes down the line.

ALSO READ:  What is the first thing to do when separating?

Suggest Voluntary Relocation

Have an honest discussion explaining your desire for a clean break and asking if they would consider cooperatively moving elsewhere to start fresh too. Some spouses may happily accept this invitation with sufficient preparation support.

Provide Housing Assistance

Help your spouse find and transition into new housing, such as paying their security deposit/first month’s rent or cosigning a new lease. This facilitative goodwill can encourage smoother cooperation than a forced confrontation.

Consider Mental Health Factors

If untreated depression, anxiety or other conditions could be distorting your spouse’s perception or reactions, gently encourage counseling or medical support first before making major demands. Their wellbeing also impacts any children.

Ask for Family Help

Enlist assistance from parents, siblings or other family members your spouse respects, to appeal to them rationally and compassionately for a cooperative solution rather than a protracted dispute. Outside influences may give new perspective.

The goal with these alternatives is an agreement minimizing conflict where both spouses feel their dignity remained intact through the difficult transition. While eviction ultimately may prove necessary, exploring cooperative options first usually results in less damage to any ongoing co-parenting relationship. Open communication and good faith are key.

Common Mistakes to Avoid

It’s easy to make missteps when high emotions run strong during a marital separation. Some common pitfalls to sidestep:

Failing to Properly Serve Notice

Proper written notification to your spouse that they must vacate by a date certain, legally served by a process server, is mandatory. Posting it yourself won’t pass legal muster.

Changing the Locks Prematurely

Never lock a spouse out of the home without a court order. This can be considered an illegal self-help eviction with civil and criminal liability. Patience and process are key.

Not Giving Full Notice Period

Provide the maximum notification timeframe required by law to avoid claims of retaliation or retaliation. Shortcutting deadlines invites unnecessary challenges.

Trying to Cut Legal Corners

While tempting to rush the process, deviating from mandated legal steps will weaken your case should it reach a court hearing. Precision protects your position.

Using Harassing or Threatening Behavior

Keep all interactions civil and avoid intimidating your soon-to-be ex in any way. Hostility can constitute retaliation under fair housing laws and sour the coparenting relationship.

Destroying or Withholding Property

Allow respectful access to gather belongings. Don’t damage or dispose of your spouse’s possessions, as this could lead to theft or vandalism charges.

Failing to Consult Local Laws

Eviction statutes differ between counties and can change. Confirm all local and state ordinances are strictly followed to avoid procedural dismissals on technicalities.

Avoiding these common blunders proves that much more care was taken to respect legal rights while also preserving integrity during an emotionally fraught time. Nuance and patience benefit all.

LEAVE A REPLY

Please enter your comment!
Please enter your name here