Can a husband evict his wife?

The husband owns a home as his sole and separate property. The wife signed a disclaimer deed. She removed the husband with a restraining order. Can he list, show, and sell the home? Also, can he have her evicted?

Asked on January 28, 2019 under Family Law, Arizona


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

Answered 1 year ago | Contributor

Firtst of all, an owner of real estate as the absolute right as to whether or no t to sell the property. That having been said, without a final decree of divorce or a legal separation agreement on effect, the house remains the "joint marital residence". This means that both the husband and the wife have the right to occupy it. This is true no matter whose name is on the deed. 

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 1 year ago | Contributor

While they are still married, he cannot evict her unless there is a court order in a divorce case that he can remove: absent a court order, one spouse may not remove the other from the marital home while they are still married. (Whether or not the home is owned--for example, a spouse who rents cannot evict his spouse from the rental unit where they lived as husband and wife.) He should, however, be able to, due to the disclaimer deed, list and sell the house--but again, can't remove her while he owns the home.

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