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We’re Divorcing, Do I have to Leave the House?

by | May 25, 2021 | Family Law

A person’s home can mean many things; safety, a place to raise children, an investment, where you sleep, where you eat, and more. We also understand that everyone has different situations in their marriage. Some homes are separate property, some people have one spouse on the deed and another on the mortgage, some people rent houses or apartments, some people believe the are common law married, etc. If you need specific advice about your living situation and whether you should move out, you should call a competent family law attorney. Because every situation and marriage are different, for purposes of this article let’s assume that we’re referring to a marriage where both spouses live in the same home together, and it’s their home.

In this scenario, during a divorce one of the most pressing issues that people tend to have is “What do I do with the house, and who has to leave?” The good thing is that nobody has leave the marital home during a divorce. The bad thing is that nobody has to leave the marital home during a divorce. In this article, we will explore some of the most common dynamics we see when clients ask us about the house they share with their spouse.

Can I kick my Spouse Out?

Yes you can, but only with a Court order! In Texas, if a divorce is pending neither party has to leave the home, regardless of the reason the divorce is happening, absent a court order. If your spouse cheats on you, is bad with money, mean to the children, has mental issues, or even hits you, that person does not have to leave the marital home unless ordered to do so by a Court. The Texas Family Code states:

Sec. 83.006. EXCLUSION OF PARTY FROM RESIDENCE. (a) Subject to the limitations of Section 85.021(2), a person may only be excluded from the occupancy of the person’s residence by a temporary ex parte order under this chapter if the applicant:

(1) files a sworn affidavit that provides a detailed description of the facts and circumstances requiring the exclusion of the person from the residence; and

(2) appears in person to testify at a temporary ex parte hearing to justify the issuance of the order without notice.

(b) Before the court may render a temporary ex parte order excluding a person from the person’s residence, the court must find from the required affidavit and testimony that:

(1) the applicant requesting the excluding order either resides on the premises or has resided there within 30 days before the date the application was filed;

(2) the person to be excluded has within the 30 days before the date the application was filed committed family violence against a member of the household; and

(3) there is a clear and present danger that the person to be excluded is likely to commit family violence against a member of the household.

Keep in mind that getting a “kick-out” order as they’re commonly called is a very specific process and is typically reserved for emergencies.

Can I be punished by leaving the home, and will this admit guilt or lessen my standing with the Court if I leave the home?

The short answer is no. People leave the marital home for many reasons during a divorce whether for personal safety, financial reasons, or simply avoiding a very awkward situation. However, there are situations where moving out of the marital home can present legal problems. For example, in Texas you do not need a specific reason to divorce your spouse, if you divorce without claiming a specific ground your divorce is typically categorized as one based on insupportability (i.e. irreconcilable differences). On the other hand, if you do have a specific reason for divorce and it fits within one of several categories, you could possibly affect the property disposition of your marriage, spousal maintenance, or even conservatorship of the children. Texas refers to the following grounds for divorce as “At-fault” grounds for divorce:

  • Conviction of a felony
  • Abandonment for 1 year
  • Cruelty
  • Adultery

Abandonment, to elaborate further, is when one spouse leaves the other spouse voluntarily for over a year with the intent of not returning. There has been precedent that shows there is no abandonment when the separation was the cause of the complaining spouse or that spouses request, the separation was by spousal agreement, or the departing spouse separated from the complaining spouse with the complaining spouse’s consent.

I want my spouse out the house, can I change the locks and kick my spouse out?

Your home is your castle and you can change the locks in your home during a divorce if you choose to. You can also kick your spouse out if you choose to. However, your spouse can change the locks right back, and your spouse can come back as well. To avoid parties taking these retaliatory actions against each other or damaging community property, most large Texas counties have “Standing orders” that will provide guidance for the parties on how to behave during the divorce. These Standing orders can cover everything from exchanging possession of children, how to handle community assets, how the parties are supposed to communicate to each other, and guidance on what can and can’t be done to the community home. Standing orders are typically filed at the beginning of a divorce or SAPCR case and will be there until the case is disposed, and the violation of a Court’s Standing order can come with severe legal consequences. Every county is different, and their Standing orders should be reviewed before acting in a case that may impact the final result of your case.



Disclaimer: The legal information presented herein should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. General advice should always be tested by the particular facts and circumstances of each case. Legal advice is almost always case specific. Statues, ordinances, legal procedures, case law and rules of evidence are often revised.