When a couple separates, a fight often ensues about who should leave the residence. Lawyers often advise men who are seeking sole or joint custody to stay in the residence rather than find a new home; this is because courts view moving away from the home and children as an indication of his willingness to give up the family assets or to give up custody of the kids. The result is a situation that is highly stressful for everyone.
Consult with an attorney before you do anything drastic, like calling the police. In most states you cannot evict a spouse who has been living with you. In community property states, such as Texas and California, even if the house is in your name you cannot evict him without a court order to vacate.
Try to settle with him privately, if your lawyers approve. This is usually the easiest way to get him to move. For example, if you are amenable to joint custody, put that into the agreement with the stipulation that he moves by a certain date and leaves you the family residence. If you would prefer to retain sole physical custody, offer something else, like a percentage of the household belongings. In most states, the belongings go with the children, so he might agree to these terms rather than face losing everything.
Have your lawyer draw up paperwork for him to sign relinquishing the house or apartment if you come to an agreement. Sometimes people change their mind or drag their feet in a divorce, hoping for a different outcome. If he signs off rights to the house you will be able to get a court order to evict him if he changes his mind.
Follow the court process to evict him if you cannot come to an agreement. In some states, like California and Texas, you can get a temporary order to vacate until the divorce is final and the judge decides who gets the home permanently. This process may take up to 30 days, so be prepared to wait. At the same time, do not move unless you feel that you are in physical peril, or the court will see this as relinquishing the family home. Do not leave the children with him if you must move or you may lose custody.
Natalie Smith is a technical writing professor specializing in medical writing localization and food writing. Her work has been published in technical journals, on several prominent cooking and nutrition websites, as well as books and conference proceedings. Smith has won two international research awards for her scholarship in intercultural medical writing, and holds a PhD in technical communication and rhetoric.