Can my husband kick me out of the house? We have children!

Posted on Jul 24, 2019 by Katie Carter

Divorce is scary. It’s not really that the process is so terrible; in most cases, I think it’s really like more doing your income taxes in a year that you’re afraid you’ll owe (instead of getting that refund). The process is tedious and annoying, and you have to go back in time to find specific documents. But, ultimately, it’s usually not that bad once you get over the fear of the unknown.

Divorce is more scary because of the unknown than because it’s all that horrible. I guess there are cases where it is that terrible, but those are relatively few and far between. The worst part is just not knowing what the ultimate result will be, and what that means for you – and, worse, what it means for your children.

Can he kick me out of our house?

One of the first questions I get is about the house, especially in cases where your husband is the primary breadwinner. In those cases, the husband often feels entitled to make idle threats. Regardless of whether the home is rented or owned, he feels like he can say that he’ll kick his wife out – even if she has no income of her own and nowhere else to go.

One of the most important things to remember, though, is that this is very common behavior. And whether he’s talking about the home, your entitlement to his retirement, or what you’ll receive as child support, you and he are no longer on the same team. He’s inclined to tell you things to bolster his self confidence and sense of superiority (and maybe also in the hopes that you’ll start to believe it, too). The problem is, I find, that their wives tend to believe them.

I don’t think you can help it. Your husband has been your partner for awhile now, and, before now, he has been a source of good information. It’s tempting to think that he’s telling the truth, especially when he delivers his lines with such a sense of conviction. He may even tell you that his attorney told him whatever it is that he’s telling you. (Please, take this with a grain of salt, too, until you have a chance to talk to an attorney of your own.)

So, back to the original question – can he kick you out?

The answer, quite simply, is no. You could go somewhere else, if the two of you agreed, but he can’t force you to go. You can stay in the marital residence until the judge either enters an order in your case or you sign an agreement.

Can we still be separated if we’re living in the same house?

Yes. Most people do, in fact. It’s expensive to maintain two separate residences, and, in many cases, couples tend to live together, at least until the majority of the terms of the divorce are resolved.

For you, if you’re earning less than he is, you may absolutely have to have child and spousal support determined before you can rent or buy a new place, anyway.

If you want to live separate and apart in the same home, though, that means you’ll have to take steps to live the way you would if you DID live in separate physical spaces. That means big things – like living in separate bedrooms – but little things too, like not cooking and cleaning up after each other. It also governs how you should behave outside of the home, too. You should be representing yourself to family and friends as a separated couple, which can be a difficult thing to do. Instead of putting on that happy face in public, as so many of us would prefer to do, you need to be talking to family, friends, coworkers, neighbors, and acquaintances about your status (you know, if it comes up – you don’t have to, like, overshare to the point of inappropriateness).

So, yes, you can live separate in the same home – but that needs to be your explicit intention, and you need to stop cohabitating (living together as husband and wife).

Can I get exclusive possession of the home? Can I kick HIM out?

So, now the shoe is on the other foot! Can you make him leave? Well, maybe. Technically, at pendente lite (Latin for “while the litigation is pending), you can ask the court for exclusive possession of the home.

Exclusive possession doesn’t touch ownership of the home; if he purchased it with you, he still has an ownership interest in it. It just has to do with possession.

Typically, if one or the other of you has left the home, you can get exclusive possession. I don’t mean that you went away for the weekend, or that you went to work on Tuesday. If you move in with your mom, for example, you’ve left the home – and, chances are, if he asks for exclusive possession when/if this goes to a hearing, he could get it. And, likewise, if the roles were reversed, you could, too.

The million dollar question, though? Will HE have to pay for it? That depends – on the court, on your personal financial situation, etc – so the best thing to do, if you want exclusive possession, is to talk to an attorney in your area and find out how the courts handle it.

Will the house have to be sold? What if I don’t want to move?

There are two options when it comes to a home that you own: either it’s sold, or one party refinances the existing loan balance and half of the equity in order to put it in his or her sole name.

The house doesn’t have to be sold, but if you’re going to keep it, you’ll need to be sure you can afford the mortgage. Probably it’s a good idea to talk to a mortgage broker about your options here. Don’t forget that it isn’t just a matter of the mortgage – there’s the amounts that go into the escrow account, as well as insurance, repairs, and upkeep. Not to even mention your housekeeper, lawn maintenance, etc.

If you can’t afford it, though, and he doesn’t want to/can’t afford to keep it, you’ll have to sell it and split the proceeds.

For more information, or to schedule an appointment with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at 757-425-5200.