Can I Evict My Spouse From Our House in Nevada?

No, you cannot evict a spouse from the marital home the way a landlord can evict a tenant. If you’re in the “this is my house, my name is on the title, you need to get out” argument with your spouse, the law isn’t always on the side whose name is on the title.  Your spouse has an independent legal right to live in the marital home,  a right that comes from the marriage itself, not from being on the deed or title.

You cannot file an eviction case against your spouse, because a judge will dismiss your case the moment the family relationship became clear.  The correct tool is a Motion for Exclusive Possession, filed in your family court divorce case, not an eviction in civil or justice court.  A motion is where you make a request to the judge to decide something.

Why Doesn’t Eviction Law Apply Between Spouses?

Nevada’s summary eviction process, set out in NRS Chapter 40, is a landlord-tenant remedy and has no application between spouses. The statutory basis for removing a spouse from the home during a divorce comes instead from NRS § 125.040, which gives the court authority to make orders affecting the spouses while a divorce is pending.  This law defines what is used when filing a Motion for Exclusive Possession during a divorce.

Can I Evict My Spouse from the House?

So What Actually Gets a Spouse Out of the House?

The tool almost everyone is actually looking for when they ask “can I evict my spouse” is a Motion for Exclusive Possession. After a divorce is filed, either spouse can ask the court for a temporary order.  Your request can include a temporary order for who can live in the house.  The motion can also include temporary orders regarding child custody, child support, and temporary spousal support.  In other words, a Motion for Temporary Orders can resolve issues that cannot wait 3, 6, or 12 months for a divorce trial to resolve.  Click Motion For Temporary Orders to learn what can be requested during the divorce.

Does It Matter Whose Name Is on the Title or Mortgage?

Not for the question of who gets to live in the house right now.  Your spouse can have a legal right to reside in the home even if you are the only signer on the mortgage and even if they signed a quitclaim deed. Title and mortgage responsibility become relevant later, when the court divides the property in the final decree, but whose name is on the title or mortgage doesn’t, by themselves, give one spouse the right to remove the other while the case is pending.

Nevada is a community property state, and a home acquired or paid for during the marriage is typically community property regardless of whose name is on the deed or the loan.  The Nevada Supreme Court applied this same “title doesn’t control” principle in the case of Malmquist v. Malmquist, when it held that community contributions toward a home can create a community interest even where separate title exists.

A spouse may ultimately get the home, but that doesn’t mean the other spouse doesn’t get compensated and is why you cannot evict your spouse.  Who Gets the House at the End of the Divorce can depend more on whose name is on the deed or the mortgage because courts cannot easily change which spouse is responsible for the mortgage.

What If My Spouse Was Never on the Title or Lease?

Usually, spouse still have a right to stay in the home during the divorce. A spouse’s right to occupy the marital home comes from the marriage itself, not from being on the title, deed, or lease.

Even if you bought the house entirely on your own, before or during the marriage, and never added your spouse’s name to anything, they generally still have a legal right to live there until a court orders otherwise. This surprises a lot of people, but it’s the same principle discussed above. Title determines what happens to the house at the end of the case, not who’s allowed to live there while the case is pending.

Can I Just Change the Locks?

Physically, yes. Legally, changing locks is risky because the judge may not be happy that you locked out your spouse. Without a temporary order or a Motion for Exclusive Possession already granted, your spouse can call the police, and responding officers will typically ask whether you have a court order. This is the first situation where it is  risky Changing the Locks on a Spouse  before getting a court order using a motion for temporary orders.

The second situation is when you are in front of the judge explaining why you changed locks instead of filing a legal motion.  Judges don’t love it when a spouse makes decisions that should be made by a judge.  They refer to it as “self-help”.  We have seen judges yell at clients and even sanction them or fine them for “being the judge”.

What If I’m Not Safe at Home?

A domestic violence incident, explained under  NRS § 33.018 can lead to a spouse being removed from the home.  If you are in danger, call the police!  The police can remove a spouse from a home if there is probable cause of domestic violence.

If the danger is immediate or has passed, but you are still worried for your safety, you can file for a Temporary Protective Order (TPO).  In an application to the judge, you explain the harm or threat of harm you are under.  A TPO may be granted without your spouse appearing at the hearing.  The court will rule on your application within one judicial day. A Protective Order Can Remove a Spouse from the Home.  If granted your spouse cannot come within 100 feet of you,  the children (if they are being harmed), from the home, and from your work.

What If I Owned the House Before We Got Married?

If you owned the house before getting married, you likely have a separate property claim to the home’s premarital value, but that doesn’t mean you can evict them.  Owning the home before the marriage doesn’t give you the right to evict your spouse, and it doesn’t mean you will receive 100% of the home in the divorce.  The legal analysis of Who Gets the Home in a Divorce doesn’t stop with who purchased it.  If mortgage payments were made with community funds during the marriage your spouse may have a financial interest in the home.

Nevada courts resolve this split interest problem using the framework from Malmquist v. Malmquist. Owning the home first gives you an advantage, but it isn’t an automatic win for the full value of the property.   A home purchased with a mortgage one year before the marriage, and lived in for 10 years during the marriage, will likely be more community property than separate property, unless a prenuptial agreement is in play.

Does Cheating or Infidelity Change Who Gets to Stay?

No.  Nevada is a no-fault divorce state, meaning a spouse doesn’t have to prove wrongdoing to get divorced. And infidelity by itself isn’t a basis for granting exclusive possession or awarding a larger share of the house. In the case of Rodriguez v. Rodriguez, the Nevada Supreme Court has held that marital misconduct must have caused an adverse economic impact on the community estate before it can serve as a compelling reason for unequal division.

Do I Have to File for Divorce First?

No. Filing first doesn’t necessarily give you first rights to the home.  If there’s domestic violence involved, you can seek a protective order before or after a divorce is filed. If domestic violence isn’t a factor, ta Motion for Exclusive Possession is your best option.

You don’t need to be the first to file the divorce to file a request for exclusive possession.   Being the first to file gives you more control over the timing of things but doesn’t automatically give you the house.  For example, if you file first, you have time to meet with your divorce attorney to put together a strategy.   You can file for the divorce and at the same time file a Motion for Temporary Orders requesting exclusive possession of the home.   By filing both the Complaint for Divorce and Motion at the same time you are dictating the speed of things.

Nevada allows spouses to file for separate maintenance (known as a legal separation) instead of divorce.  Separate maintenance actions are authorized under NRS § 125.190.  The same law and legal procedures that exist in a divorce exist in a legal separation.

Next Step: If you’re unsafe at home or need a spouse out of the house, talk to one of our Las Vegas divorce attorneys today. Right Lawyers offers flat-fee consultations to discuss your options.   Wrong Marriage, Call Right Lawyers.

 

This article draws on Nevada’s summary eviction statutes under NRS Chapter 40, and the family court’s authority to issue temporary orders affecting marital property during a pending divorce under NRS § 125.040. Nevada’s domestic violence protections, including the acts that constitute domestic violence for purposes of removing a spouse from the home, are addressed under NRS § 33.018, and legal separation proceedings are authorized under NRS § 125.190. The Nevada Supreme Court’s treatment of community and separate property interests in a marital home is discussed in Malmquist v. Malmquist, 106 Nev. 231, 792 P.2d 372 (1990), and the effect of marital misconduct on property division is addressed in Rodriguez v. Rodriguez, 116 Nev. 993, 13 P.3d 415 (2000).