Divorce marks the end of an era in a person’s life. Besides the emotional and physical split, legally one entity that came together now must be separated again. This includes the family home. Before the divorce is finalized, though, both parties are still assumedly living in this home, but as the couple separates invariably one will want to stay in the home. When one spouse will not leave the marital home, it may force one spouse to seek legal assistance in forcibly removing him or her. The requirements for obtaining an order to remove your spouse from the home and keeping him or her away will depend on the circumstances.

Without One Party, Under Threat of Violence

Under California Family Code Section 6321 the divorce court may issue an ex parte order that excludes a spouse from the family home, the home of another or any other home where children of the marriage are staying. These types of orders that are issued without one party present are only granted when:

•      The petitioning party can show that he or she has a right to possession of the premises;
•      The other party has assaulted or threatened to assault the petitioning party or someone in their care; and/or
•      Physical or emotional harm will result to the petitioning party or someone under their care if the other party is not barred from the home.

With Both Parties, Still Under Threat

California Family Code Section 6340 imposes less strict requirements in granting a motion to bar one party from the family home and for good reason. Section 6340 only bars a spouse from the family home after the party that is to be barred has received notice and attended a hearing to resolve the matter. Due to the procedural due process that the party to be barred receives, and the opportunity that he or she will be able to have to contest the request, the requirements for granting such a motion are lower.

Have You Been Threatened by your Spouse during a Divorce? Consult with a Family Law Attorney

Orders to be removed from the family home are usually only granted when there are threats of physical abuse or a spouse has a history of violence. Therefore it is very important to consult with a California family law attorney to bring the proper motions as soon as possible to obtain an order from the court barring a spouse from the marital home. If you are looking for an experienced family law attorney, contact online or call the office of Charles D. Stark in Sonoma County today at 707.527.9900. He can assist you in all of your divorce needs.