Evicting your spouse is virtually impossible, at least if you approach the situation as a landlord-tenant proceeding and not another type of legal action. Even if the property is in your name, many states take the position that if you’re married, your spouse may have a right to some interest in it. A landlord-tenant court can’t just toss him out, but you may have other options.
Deed vs. Mortgage
An important distinction exists between your mortgage and the deed to your home. The mortgage is an obligation to repay a debt secured by the property, whereas the deed actually establishes ownership. Even if your spouse’s name isn’t on the mortgage, if it appears on the deed to your home, he has a distinct ownership interest and you can’t evict him. If he’s just on the mortgage, he has a debt obligation but not necessarily an ownership interest. This still doesn’t mean that you can evict him through a landlord-tenant lawsuit, but it can be helpful in divorce proceedings when the judge is deciding who should get the property.
Read More: Who Is Responsible for a Mortgage When a Spouse Dies Without a Will?
If your spouse’s name appears on neither the mortgage nor the deed, talk with a local attorney. Given that you’re married, you probably can’t pursue an eviction proceeding even under these circumstances, but this might vary somewhat by state. Normally, you must be the only one who has a legal right to be in the home in order to evict someone else who’s living there. This could be the case if your spouse’s name isn’t on either the mortgage or the deed, but the fact that you’re married might give him a legal right to be there, making an eviction action impossible.
If you file for divorce, you can then file a motion with the court asking for exclusive occupancy of the residence. If you’re successful, the court will issue an order telling your spouse to leave. This isn’t quite as easy as it sounds, however. You must establish that his presence there threatens the well-being of you or your children. This “eviction” is temporary -- it lasts only as long as your divorce proceedings. When your divorce is final, the court will decide who gets the house permanently.
A Restraining Order
You have one other option if domestic violence is an issue and you want your spouse out because it’s unsafe for you to continue living with him. You can ask the court for a restraining order, with or without filing for divorce first. This requires a very similar burden of proof as asking for exclusive occupancy. You must prove that your spouse has either threatened you with violence or actually committed an abusive or violent act against you. A restraining order would not only obligate him to leave your home, but prohibit him from contacting you or even approaching you in public or at your place of employment. Normally, you would receive a temporary restraining order first, good for no more than a month, with a second hearing scheduled later so the judge can decide whether the order should be made permanent. If the court doesn’t make the order permanent, it’s possible that your spouse would be permitted to return to your home, at least until you divorce.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.