Mrs. Todd had been married to Mr. Todd for ten years. Mrs. Todd is filing for a divorce in Las Vegas, Nevada. She bought the home before the marriage. The title was in her name, and so was the mortgage. She never added his name to the deed. With the divorce being filed she wanted Mr. Todd to leave. She wasn’t asking out of cruelty. She just couldn’t picture six more months of sharing a kitchen with someone she was divorcing. He said no. Can she evict him?
Can She Evict Mr. Todd?
The answer was no. She couldn’t evict him. At least not through the Las Vegas Justice Court eviction process. Eviction is a legal process used by a landlord to remove a tenant. Your spouse is not technically a tenant. If Mrs. Todd was to file an eviction the judge would dismiss the case the second they found out the home is a marital home. Read more about not being able to evict a spouse at Can I Evict My Spouse.
Under Nevada law, which is a community property state, there is a presumption that your spouse has a legal interest in the marital home, and a legal right to live in the marital home. These presumptions can be broken, but she would require a divorce court judge’s order, not an eviction court judge.
Can She Change the Locks?
She could try and change the locks. If Mr. Todd complained to the police they would ask Mrs. Todd to provide a court order confirming the eviction is lawful. She would need a court order from the divorce court judge giving her exclusive possession of the home, or she would need a Temporary Protective Order (TPO) blocking Mr. Todd from being able to reside in the home.
She wasn’t dealing with abuse or domestic violence. So a TPO option was available. This was more about the awkwardness that comes from living in the home with someone you are divorcing. It can be awkward walking down the hall or sitting in the living room and seeing the person you are divorcing in court. A final decision on who will keep the home could take six months. That’s six months of stress and uncomfortableness.
What if Mr. Todd left voluntarily? If a spouse leaves for an extended period of time, you can change the locks. There isn’t a law supporting changing the locks. But, the police don’t typically do too much if the spouse left voluntarily. If Mr. Todd left the house voluntarily, and had been gone for an extended period of time, Mrs. Todd could change the locks. This would give her defector possession.
Can Mrs. Todd File Motion For Exclusive Possession?
Mrs. Todd was going to need to file a Motion for Exclusive Possession of the Home. This is considered a Motion for Temporary Orders. During a divorce proceeding, either spouse can request a judge to decide things like possession of a home, temporary spousal support, and temporary child custody orders.
To be given “exclusive possession” of the home, Mrs. Todd will need to show the judge a compelling reason. Physical abuse, or constant arguing is the number one reason for asking for exclusive possession. In her case there was no physical abuse. She just feels uncomfortable living in the home with him. She also felt the home is hers because she purchased it before the marriage.
She filed her motion requesting possession of the home while the divorce was happening. The judge had to weigh factors like; was there any arguing or harassment happening while they lived together, whether the home was likely to end up as Mrs. Todd’s property, whether she could afford the mortgage and other bills without his assistance, and whether Mr. Todd had somewhere else reasonable to go that he could afford. The judge’s decision leaned on their incomes being able to support two household expenses.
Granting exclusive possession would be a temporary order. With a temporary order the judge is not making the final determination that the house is her separate property. Nevada is a community property state. In a community property state, all property acquired during the marriage is considered community property. Deciding Who Gets the Home in a Divorce would be decided by the judge at a later date.
In this case, the judge denied Mrs. Todd’s motion. The denial was primarily based on the fact that there was no evidence of violence or harassment happening in the house, and the practical issue that they would both have a hard time supporting expenses for two households.
Did She Get the Home in the End?
Yes, and no. After few more months of disclosing evidence, a deposition, and then a trial, the judge granted Mrs. Todd the home because the home. His decision was mostly based on the deed and mortgage being in her name. However, the judge determined a portion of the home’s equity was her separate property and a portion was their community property to be divided. The community property amount was found to be $180,000. This meant to keep the home Mrs. Todd would need to pay Mr. Todd half of this amount.
Mrs. Todd did not have $90,000 from other assets or bank accounts to give him. She also could not qualify for a second loan or HELOC to find him the $90,000. Therefore, Mrs. Todd has to sell the home and pay Mr. Todd $90,000.
This is not the happy ending, you would hope for. Unfortunately, divorce court is not in the business of creating happy endings. The law in family court can be cold and unpleasant when delivered.
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Who Pays the Mortgage and Bills During a Divorce
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