Who Gets The House in a Divorce?

When you’re considering a divorce and the marriage is truly in shambles, then you might be wondering what your options are for cutting ties with your former spouse as quickly as possible. One of the questions many people often ask is whether they can kick their spouse out of the house while the divorce is in process. While most divorcing couples generally have the good sense to amicably decide who will stay in the house while they resolve their divorce, some divorces are far more contentious and see spouses duking it out for who gets to stay in the house. Hiring an Irvine contested divorce lawyer can go a long way in figuring out your options for getting your ex out of the house.

In some situations, getting your spouse out of the house is more than just getting rid of a nuisance. In California, it is possible to legally force your spouse out of the house and require that they stay away for a long time. If living with your spouse has become truly unbearable, find out if you’re within your legal rights to file for a dwelling exclusion and get them out.

What is a Dwelling Exclusion?

The California family law code gives a spouse a legal remedy for making another spouse leave their shared home. This law allows the court to issue what’s known as an ‘ex-parte order’ to exclude a party from a home and would additionally bar that person from living in a home where the former spouse might have moved to. Obtaining this order would mean that the spouse is obligated to leave the home they share with the other spouse, regardless of who has legal title to the home. If your spouse refuses to leave the house after you’ve obtained this order, then they can be arrested and face jail time.

Obtaining a dwelling exclusion is complicated, but it can be done, particularly with the help of an experienced Irvine contested divorce lawyer. Your attorney will submit an ex parte application on your behalf, and this application might show good cause because your spouse will not have an opportunity to argue against the order in court. Examples of good cause include:

• Your spouse has assaulted or threatened to assault you or someone under your care, custody, and control.
• Evidence suggests serious risk of harm, such as videos, text messages, letters, or sworn witness statements that your spouse is dangerous to you or your children. 
• That you would suffer physical or emotional harm if the court did not grant the order. This is a low standard of proof and does not require an emergency situation, but you will have to show there is a high risk of harm if they were to continue living in the home. 

To be granted the ex parte application, you must also be able to show that you have a legal right to retain possession of the home. 

Contact an Irvine Contested Divorce Lawyer

Winning an ex parte application to get your spouse out of the house isn’t simple and requires the experience and counsel of an experienced Irvine contested divorce lawyer. Contact our office today.

Frequently Asked Questions

Who gets to keep the family home in a California divorce?

Whichever outcome the parties agree to, or failing that what the court finds workable. There are three ordinary paths: one spouse buys out the other’s interest and refinances, the house is sold and the net proceeds divided, or the sale is deferred while one spouse and the children remain in it for a defined period. A court has no default preference for either spouse, and the practical constraint is usually financial: a buyout requires both the equity to offset and the ability to qualify for a loan alone.

Does a spouse who paid the down payment from separate funds get it back?

Generally yes, as a reimbursement rather than as an ownership share. A spouse who contributes separate property to the acquisition of community property is entitled to reimbursement of the amount contributed, without interest and without a share of the appreciation, unless there was a written waiver. So a separate down payment on a jointly titled home comes back dollar for dollar, while the appreciation is divided as community property. That distinction surprises many people, and it is worth understanding before the contribution is made.

What happens to a house one spouse owned before the marriage?

It starts as separate property, and it usually does not stay purely separate. Where community earnings paid down the mortgage during marriage, the community acquires a pro tanto interest in the property, so the community shares in a corresponding portion of the equity and appreciation. Community funds spent on capital improvements can generate a claim as well. The apportionment is calculated from the payment history, which means the analysis depends on records rather than on how title reads.

Can one spouse stay in the house until the children finish school?

By agreement, yes, and a court also has authority to defer a sale where it is economically feasible and serves the children’s need for stability. These arrangements need terms that most people overlook: who pays the mortgage, taxes, insurance, and repairs during the deferral, how those payments are credited at the eventual sale, what valuation date applies, what triggers the sale, and what happens if the occupying spouse cannot maintain the payments. Both spouses also remain on the loan, so both carry the liability throughout.