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

UPDATED: Sep 30, 2022

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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


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

Answered 7 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.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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