Can I Evict My Spouse From a Rental Property During Divorce?
No, the same rule applies whether you own the home or rent it. A spouse’s right to remain in the marital residence during a divorce comes from the marriage itself, not from whose name is on the lease. Removing a spouse from a rental works through the same family court process as an owned home.
You need either an Temporary Protective Order (TPO) giving your exclusive possession or an order from a Motion for Exclusive Possession to evict your spouse from your rented home. Not owning the home does add a second layer, not unlike when a mortgage lender is involved.
Both Our Names Are on the Lease, What Happens?
The same family-court framework generally applies: a spouse has an equitable right to remain in the residence during a pending divorce even in a rental, and a Motion for Exclusive Possession can address who stays. Where it gets more complicated is the landlord relationship itself. Both of you likely remain on the hook to the landlord regardless of what the divorce court decides. Removing a name from the lease takes the landlord’s cooperation, not just a family court order (more on that below). If this is your situation.
What If Only My Name Is on the Lease?
Don’t expect the landlord to resolve this for you. Landlords do not have the authority to evict a spouse that is not on the lease. And don’t expect a lease in only your name to work as a shortcut around the family court process. Even if your spouse never signed the lease, Nevada courts generally treat their right to live in the marital residence as coming from the marriage itself, not from the lease. This is the same principle that applies to couples who own a home.
The main difference between a rented home and an owned home is the judge is concerned with economic interest in the rental. A family court judge will more than likely make a decision on who is staying in the rental when addressing a Motion for Exclusive Possession. The judge doesn’t need to make a final decision at the motion hearing, but if there is no economic interest because it is a rental, judges tend to determine who is going to stay in the rental early in the case.
Where it gets more practical than legal is the landlord’s record of who is liable for the rent. Who is obligated to pay the rent can require the same analysis a judge uses in determining Who Gets the Home After the Divorce. Who is obligated to pay the mortgage and who is obligated to pay the rent are similar concerns for a judge.
Are We Both Still Liable to the Landlord for Rent?
Yes both still liable to the landlord for rent, if they both signed the lease. And yes, in the eyes of the divorce judge. All assets and debts (and a lease is a debt) acquired during the marriage will be equally divided by the judge. Both spouses who signed the lease will be liable to landlord under contract law.
A judge cannot change the obligations both spouses agreed to in a contract with a landlord. The judge has no authority to order a landlord to remove one spouse from the lease. A judge does have the authority, under divorce and family laws, to order one spouse to help with lease payments.
Practically speaking a judge will not order a spouse, who is not going to live in the rental, to pay rent to the other spouse after divorce. They could order this, but it would require unusual circumstances. And it would likely come in the form of child support, or spousal support.
During the divorce, the judge can make temporary orders regarding financial support. This would include child support, rent, utilities, car insurance, or any other expense. This is called temporary support. This is where a judge wants to ensure the couples’ finances stay status quo while the divorce case is happening. Temporary support is different than spousal support.
Can the Landlord Decide Who Gets to Stay?
No. The landlord’s role is limited to the lease and the rent; collecting it, enforcing lease terms, and deciding whether to remove a tenant through a legitimate landlord-tenant eviction if the lease itself is violated. Who gets to occupy the rental is a family court question, not a landlord decision.
The same family court process for evicting a spouse from your home applies whether you rent or own. Read more at Can I Evict my Spouse in Nevada. The same legal principles for changing the locks on your home applies whether you rent or own. Read more at Can I Change the Locks On My Spouse.
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