Can I evict my husband if our marriage is not working out and we have only been married for just over a year?

I’ve been married for a little over 1 year. I was given prenup one week prior to our wedding. It basically states what is mine is mine and what is yours is yours. Anything accumulated in retirement from date of marriage is 50/50 – same for any equity in my home. It has been a year and we have nothing to split. This is not working out for a number of reasons but he refuses to go to counseling and refuses to leave until I file (he says). I have a son from a prior marriage and my husband will not refrain from screaming and name calling. I refuse to engage and try to walk away so that things do not get worse but he will not stop. I do not want my son to see this and want him out. Can’t he be treated like a tenant in this case, so that I can provide a 30 day notice?

Asked on November 21, 2015 under Family Law, Texas

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

No, until your divorce is final or another court order has been issued regarding the exclusive occupancy of your house, both you and your husband have equal rights to it since it's still considered to be the "marital residence". This is true not matter whose name the deed is in. Accordingly, at this point you can't force him to vacate. The exception being if he puts you and/or your son in fear of your safety. In that event, you could get an emergency protective order to keep him from entering the residence (and if the threat is immediate, the police can come and remove him). However, based on the facts presented it does not appear to rise to the level of obtinig such an order.
At this point, it probably time that you consult directly with a divorce attorney in your area. They can best advise you further.


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