In certain domestic situations, it becomes necessary to kick your spouse out of the house. This may be the best move for your own personal safety or that of children or pets. In California, it is possible to legally force your spouse to move out of your home and stay away for a certain length of time. One can only get such a court order, however, if he or she shows assault or threats of assault in an emergency or the potential for physical or emotional harm in a non-emergency. If living with your spouse in unbearable, find out if you’re within your legal rights to file for a dwelling exclusion.
What is a Dwelling Exclusion?
California Family Code Section 6321 gives a spouse a legal remedy for making another spouse leave a residence or dwelling. It states that the courts can issue an “ex parte order” to exclude a party from the family dwelling, the other party’s dwelling, or the dwelling of the person caring for a child. This order protects a party from domestic violence for a period of time, as laid out in the conditions the court determines. The ex parte order forces the spouse to leave the dwelling in question regardless of which party holds the legal title to or is the lessee of the residence.
A dwelling exclusion order, or “kick out” order, is a legal document that gives you the right to exclude your spouse from your home. The order puts you in sole possession of your home in emergency circumstances such as domestic violence. Once the court grants the dwelling exclusion order under Family Code 6321, your spouse must leave the residence or face legal consequences such as arrest. If your spouse still refuses to leave, you have the right to call the police.
How to Obtain a Dwelling Exclusion Order
If you need to kick your spouse out of your residence for your family’s personal safety during a divorce or otherwise, hire a lawyer to submit an ex parte application to the California courts. Since your spouse will not have the opportunity to present his or her side of the argument, the courts will typically only grant an application if it finds you are in a true emergency. Good causes for why the courts should grant your order may include:
- The other party has assaulted or threatened to assault you or someone under your care, custody, and control.
- Objective evidence points to serious risk of harm. You may have a video, texts, letters, or sworn witness statement that proves you, your child, or someone else in your care is in serious risk of harm from your spouse.
- You would suffer physical or emotional harm if the court did not grant the order. Under Family Code Section 6340, there is a lower standard of proof that means it’s not necessary to prove an emergency. In a non-emergency, however, you must prove that without the order there is a high risk of harm.
You must also prove the party that will remain in the dwelling has a legal right to possession of the premises. If you meet these minimum requirements, the courts will grant your order, typically effective immediately. An attorney or third party will serve your spouse the order on your behalf to protect your personal safety.
Always trust an experienced family law attorney to submit applications for dwelling exclusions during divorces or otherwise. When your family’s safety is at risk, don’t attempt to file these documents on your own. Seek emergency help if you or your family is at immediate risk in a domestic violence situation. Contact a domestic violence hotline for additional help.
