If you’re divorcing or separating from your partner, living together can be awkward or even painful. What should you do if your spouse doesn’t leave? Can you evict them? In some cases, yes. Here’s what you need to know. 

Spousal Eviction Defined 

Eviction is a legal process by which you can force a tenant to move out of a residence that you own or lease. The tenant must vacate the premises and remove their belongings within a certain period of time or risk legal consequences. 

Under What Circumstances Can You Evict Your Spouse? 

There are only a few circumstances under which you can legally evict:

Instances of Abuse 

In cases of domestic violence, the abuser can be evicted from the home, even if it is shared or if they pay all or part of the rent or mortgage. This may be violence against you, your children, or another person in the home with a familial relationship to the abuser. You can file for an order of protection (also known as a restraining order or temporary injunction), which MAY be granted on an emergency basis if you prove are under immediate threat and that there should be no contact. 

If Your Property Is Separate and you Give Notice or Receive Exclusive Use and Occupancy

If you’re living in the property that is separate and belongs only to you, you may be able to have your spouse evicted within a certain time period. Separate property may still be considered marital or community property if your spouse has been making payments to the rent or mortgage, if it was purchased during the marriage, or if your spouse has invested in the home in other ways. 

Simply being removed from the mortgage — or never been on it, to begin with — is not enough to revoke the rights your spouse may have to the marital home. 

You may need to request exclusive use and occupancy within your dissolution case and give your spouse proper notice and/or time to obtain a new residence. 

Examples of truly separate property include: 

• Property that you inherited before or during the marriage and only your income was used for taxes, maintenance, and repairs i.e.- your spouse has not invested in.
• Property that you purchased prior to the marriage and was not invested in by your spouse in any way. 

Thinking About Evicting Your Spouse? Call a Lawyer 

If you’re considering evicting your spouse or want to know if you have the option, contact an attorney. Your lawyer will review your circumstances and discuss what legal remedies are available and in your best interests. Contact Naples family and divorce lawyer Kevyn Noonan Hayes, P.A. for a consultation at 239-591-6248.