One of the first questions arising in a divorce involves the living arrangements of the respective spouses pending finalization of the proceeding. Usually, it is difficult for the spouses to live under the same roof while the divorce case is pending. This article discusses the factors considered by the Court when making the determination of which spouse gets to stay in the home until the divorce is completed.

Emergency Orders

The party seeking the move-out order can do so on an emergency basis with evidence that the other spouse has committed violence or threatened violence. This requirement has been codified in Family Code section 6321(b), which requires you to show all of the following:

“(1) Facts sufficient for the court to ascertain that the party who will stay in the dwelling has a right … to possession of the premises.

(2) That the party to be excluded has assaulted or threatens to assault the other party or any other person under the care, custody, and control of the other party, or any minor child of the parties or of the other party.

(3) That physical or emotional harm would otherwise result to the other party, to any person under the care, custody, and control of the other party, or to any minor child of the parties or of the other party.”

The words “assaulted” or “threatens to assault” means the actual violence need not have occurred. A court will consider the request when there is a showing that threatened violence has occurred. A court may require that violence or threat to be recent, which could mean days, weeks or months, depending on the facts of each case.

Non-Emergency Orders

A party may seek a move-out order on a non-emergency basis by filing a motion with the court. The other party must be given notice of the hearing and an opportunity to object to the requested relief. Sufficient facts must be alleged to convince a judge that excluding the other spouse from the shared residency is necessary to prevent “physical or emotional harm … to the other party, to a person under the care, custody, and control of the other party, or to a minor child of the parties or of the other party.” Notably, there is no need to show “assault” or “threatened assault.” The requesting party can prevail by showing her current situation was not conducive to a harmonious home life for herself and/or her child.

The second ground for seeking a non-emergency move out order is when the parent of a minor child seeks to stay in the family home with the child for that child’s best interest. Under Family Code sections 3800 et.seq., a parent may seek permission to stay in the home if it’s shown to be in the best interest of the children to maintain the familiarity and schedules of the kids during the divorce. When making this determination, the presiding judge will consider who spends the most time with the children. The court will also weigh any other circumstance affecting the child’s best interests. The court may also require either party to continue to pay the mortgage and other expenses of the residence while the order is in effect.

An award of exclusivity is not taken lightly by the court, since it impacts not just the living arrangements but custody, child support, and spousal support. Accordingly, the more evidence you have, the better the chance the court will grant it.

Feel free to contact Lynx Legal Service with any questions regarding the above, or if you have any legal document preparation needs. We can be reached at 888-441-2355 or [email protected].