My spouse and I are divorcing. Can I force him to move out of our home?

Often at the beginning of a period of separation or divorce, a couple realizes that they are unable to reside in the same house. Understandably, emotions are high and the feelings they once had for each other have become strained.

Different factors come into play in determining whether one party should move out of the home. Generally speaking both parties have the equal right to occupancy of the home. Neither party has a greater right than the other. Door locks or the alarm codes cannot be changed by either owner.

The situation becomes more difficult when minor children are involved. Neither parent may want to leave for a number of reasons. The parent who is the primary caretaker may not have the financial ability to vacate the home with the minor children and therefore, will opt to stay in the home. The other parent who may have the financial ability to obtain his/her own home may be unwilling to voluntarily leave the home in order to be closer to the children until there is a custody agreement.

The only way to force a party to move out is by obtaining a domestic violence restraining order containing a request that the party be excluded from the residence. In order to obtain a domestic violence restraining order, the party must show that he/she has been a victim of domestic violence as defined in the California Family Code. You can represent yourself or retain counsel to assist you. Certainly, in an emergency situation, your local police should be contacted immediately.

Jon Summers is a Partner with Freid and Goldsman, and has 23 years experience practicing family law.