What to do if I want to separate from my husband and have asked him to move out but he won’t?

We have 5 children. He says that if he does leave he will take the children.

Asked on January 29, 2013 under Family Law, Texas


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

Answered 7 years ago | Contributor

Unless there is a legal separaton agreement in effect, final divorce decree or other controlling court order mandating which one of you has the right to exclusive porsession amd control of the premeises, your husbnad has the right to stay. At thi pont, your home is still consider to be the "marital residence" regardless of whose name is on the deed or lease.

As for taking the children, untli there is court order in place regarding custody, your husband can take them if he wants; no claim of parental kidnapping or the like can be made. However, if you file for custody beforehand that would change things,

At this point, you need to take legal action to protect your rights. Doing this before he does will be to your benefit.

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