If we separate, can he force me to move out?

Posted on Apr 13, 2022 by Katie Carter

One of the most common questions we get is about living together after separation. Specifically, can one of you – usually, the one with the upper hand – force the other to move out? Whether you own or rent your home, whether you’re the higher earning spouse or the lower earning spouse, the answer is the same: no.

Just because you guys have separated – which, from a legal point of view, means that two things have happened: (1) you’ve formed the intent to end the marriage, and (2) you have stopped cohabitating – doesn’t mean that one or the other of you immediately has to move out. From a practical perspective, most people live separate and apart under the same roof for at least part (if not virtually all) of their period of legal separation.

You can’t force your husband out, just like he can’t force you out. But either one (or both) of you can make this already uncomfortable period of time even worse on yourselves.

If you rent your home

Renting a home is different from home ownership, obviously. But it doesn’t matter whether one or both of you are on the lease; if you’ve lived together in the home that you rent during the marriage, neither of one of you can kick the other out.

Technically, what should happen is that you either reach an agreement or the court enters a final judgment in your case. That will resolve all the outstanding issues, like child and spousal support, and will free one or both of you up to move. That way, you’ll know what kind of money you’ll have coming in so that you can make a decision about your next place.

If you have to break your lease, you’ll probably want to talk to your landlord about your options early on. It may be that he’ll let you revise the lease to include just you, assuming that you have the money on hand to cover the rent, or that he’ll let you off the hook early if he’s able to replace you with a new tenant. If you have to breach the lease and are charged for it, you’ll likely both have to share in that cost.

If you own your home

The answer here is still the same. Whether you own your home jointly or whether it’s in one of your sole names, you can’t just kick the other out. Even if a home is solely in one party’s name, it may still be a hybrid asset, and the equity in the home could still be subject to division during the divorce Even if the home is in one party’s name, that party could still have to buy out the other party’s interest in it.

Basically, if marital money was used at all – either to pay down the mortgage or to make improvements on the home – it’s at least partially marital. Marital property is determined regardless of title anyway, so the fact that only one spouse’s name is on either the deed or the mortgage is largely irrelevant, except that if the party whose name is currently on the mortgage wants to keep the home, he or she wouldn’t have to refinance in order to do that. So, one step is saved, but the reality – the division of the equity in the home – remains.

The end result here is the same; basically, you can either go on living separate under the same roof until you have a signed agreement or the judge enters an order. At that point, you should both have a clear idea of how much money you have coming in, and can make decisions about future living arrangements.

I WANT to go, but I can’t afford to go!

I can’t speak to your unique situation, but usually I find that one spouse or the other stays because he or she isn’t sure what else to do. Usually, there’s no money – or not much money – coming in, and setting up a completely separate home during such uncertain times is virtually impossible.

Most people do live separate under the same roof for a period of time, usually because financially they have to. I’m not saying it’s a great idea, but its definitely a practical one, though it probably won’t give you some of the best memories of your life. For most women, it’s an intensely stressful time.

Can I get exclusive possession? I need him out – now!

Exclusive possession is definitely a thing! If you just can’t take it anymore, it’s worth looking at the options that are available to you legally.

In general, the court won’t force one or the other of you out of the home, unless you’ve already gone. If he’s, for example, staying at his mom’s but threatening to come back, it would be a good time to ask for exclusive possession. Quick! Before he comes back!

But also keep in mind that different courts view expenses in the home differently; some view the household expenses (mortgage, utilities, etc) as shared, even if one party has moved out, while others view them as the sole responsibility of the party remaining in the home. Talk to an attorney experienced in your locality about the mindset of the local judges in your circuit court.

You could also ask for exclusive possession if there has been domestic violence. As part of a protective order hearing, you could ask for exclusive possession of the home. You’ll want to make sure you have good proof, though.

If he’s threatening to kick you out, take heart. He can’t, really; at least, not until a LOT more is resolved in your divorce. If you’re hoping to get him out, well, take heart; this won’t last forever, either. Chances are good that you’re stuck together, at least for the short term, but the good news is that you can resolve things quickly, if you’re amicable, with a separation agreement, and then go your separate ways.

For more information, or to schedule a consultation, give our office a call at 757-425-5200.