If I want my husband to leave my residence but I have not filed for divorce yet, what steps do I need to take?

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If I want my husband to leave my residence but I have not filed for divorce yet, what steps do I need to take?

Asked on July 11, 2011 under Family Law, Texas

Answers:

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

Answered 9 years ago | Contributor

Until your divorce is final, the home is considered to be the joint marital residence. Therefore both of you have the right to possession and control. In order for you to gain the exclusive use of the home at this point (prior to filing) you will need to go to court and have the judge issue temporary orders prohibiting your husband from entry. However, you will need to show good cause as to why your husband should be removed; merely not wanting him there won't be enough. Additionally, if you enter into a formal separation agreement you could cover whether or not he can continue to occupy the premises in the document itself (but he would have to agree to this).

Bottom line, your husband has the same right to the house as you; this is true no matter whose name the deed/lease is in in or who is paying the mortgage. The exception would be if your husband as put you or any other legal occupant in fear for their safety. Then you can contact the police who will remove him immediately (however since you made no mention of threats and/or abuse I assume it not to be the case). A word of caution here, don't make a false accusation to circumvent the law in order to get him out. The courts take a dim view of such claims and there could be legal ramifications for you if you do.

At this point you shoudl consult directly with a divorce attorney in your area.


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