Can You Kick Your Spouse Out of the House?

A home is a place where everyone should feel safe. But, unfortunately, that is usually not the case for victims of domestic violence. Instead of being a safe haven, home is the lion’s den — a place where the victim is subject to physical and emotional abuse or constantly on edge in fear of such abuse and has very little means of escape. But what happens if the abuser is a spouse who has the same right to inhabit the property as the victim? In those cases, California family law offers a remedy in the form of dwelling exclusions (also known as “kick-out” orders), and our Stockton family law attorneys can help you obtain one. 

Emergency Situations 

California Family Code § 6321 covers kick-out orders in emergency situations. The statute refers to them as “ex parte” orders because one party (i.e., the victim) can obtain them without notice or an opportunity to be heard for the other party (i.e., the abuser). Under § 6321(a): 

The court may issue an ex parte order excluding a party from the family dwelling…to be protected from domestic violence for the period of time and on the conditions the court determines, regardless of which party holds legal or equitable title or is the lessee of the dwelling.

To obtain an emergency kick-out order, the applicant must show all three of the following: 

1. The party who will stay in the residence has a legal right to possession of the premises 
2. The party to be excluded has assaulted or threatens to assault the other party or any other party under their care, custody, and control 
3. Physical or emotional harm would otherwise result to the other party or any person under their care, custody, and control 

Readers should note that merely going through a divorce is not a legitimate basis for requesting a kick-out order; rather, the applicant must show domestic violence regardless of whether the couple is divorcing.  

Non-Emergency Situations

California Family Code § 6340(c) allows for a party to request a kick-out order on a non-emergency basis if the applicant can show that “physical or emotional harm would otherwise result to the other party, to a person under the care, custody, and control of the other, or to a minor child of the parties or of the party.” While non-emergency kick-out orders do not require the applicant to show an assault or threat of an assault, they are not ex parte because the party to be excluded is entitled to notice and an opportunity to be heard. That means the spouse accused of abuse will know that the other spouse is seeking the order before it issues and will have an opportunity to rebut the other spouse’s allegations. 

Get Out of a Dangerous Situation With Help From a California Family Law Attorney 

If you’re experiencing domestic violence, you should consider taking advantage of a kick-out order, provided that the circumstances call for it. To determine whether that’s the case for you, please contact a California family law attorney at McKinley, Conger, Jolley & Galarneau by using our online form or calling us at 209-477-8171.