Mr. & Mrs. Schwartz

Posted: 3 October, 2023

Can you evict your spouse from your home?  Mrs. Schwartz, a client of ours, would like to know.

The Schwartz’s have been married for 10 years. Mrs. Schwartz owned the house they are living in, prior to the marriage. The title is in her name, and the mortgage is in her name. She is going to file for divorce after the holidays.   No one likes the idea of filing for divorce during December.   In the meantime, she would like to evict her husband.    He’s not being abusive.  She just doesn’t want him in her home anymore.  Living with the person you are about to sue for divorce can be an interesting.  Can she evict him?

The basic answer is no, she cannot.   Eviction is a legal process used by a landlord to remove a tenant. Spouses are not tenants.  If she changed the locks, he could contact the police.  The police would explain to Mrs. Schwartz that Nevada is a community property state.    In  community property state, both spouses have a legal right to possess and control all community property.    This is true even when her name is the only name on the home.

The public policy behind this is obvious.   Could you imagine the impact if spouses could evict spouses for any reason.

When you get married, all property acquired during the marriage is community property.   Community property is divided equally in a divorce.   Separate property is any property acquired before the marriage, that hasn’t been commingled.   Separate property is not divided.

The marital home, even if acquired before the marriage, is going to be presumed to be community property.   Mrs. Schwartz can overcome this presumption at the divorce trial.  She can present the judge evidence showing the house was purchased before the marriage, and should be labeled separate property.      But, a divorce trial could take eight months or longer.  What does she do until the trial?

After we file the divorce, we would file a request with the judge to give her “exclusive possession” of the home. This request is called a “motion” and is a typical request.   Because contested divorces can take time, the court allows temporary orders to be made.  The court can make temporary orders like a child custody schedule, child support amounts to pay, who will pay what bills, and who will live in the marital home.  These requests are called temporary orders because the judge may make permanent orders that are different after the divorce trial.

To be given “exclusive possession” of the home, Mrs. Schwartz will need to show the judge why this is an appropriate order.  A typical reason given is a spouse is verbally or physically abusive.  We don’t have that in this case.  Instead she will need to show the house will most likely be her separate property. and isn’t commingled separate property.    With it likely being separate property, and her wanting to stay in the home, the court may see no reason to wait on this order.

Mrs. Schwartz will need to show her husband can afford a new place, or has other options like family he can stay with.  There are cases where the finances of a second home is simply not feasible. Therefore, the judge will allow the spouse to stay in the home.   The judge will not allow a spouse to be homeless.  while the divorce is going on.

Other than temporary orders, Mrs. Schwartz’s only has two remaining options.   If he is physically abusive she could file a Temporary Protective Order (TPO).    And, if he leaves voluntarily she could change the locks.

Instead of temporary orders, a spouse might be able to file a Temporary Protective Order (TPO).  A TPO prevents the other spouse from coming within a 100 feet of the protected spouse. This means you cannot come to their home, their work, or anywhere they are. A TPO can be filed if a spouse can  “imminent danger”. Verbal abuse is typically not enough. Actual physical abuse, and credible threats of physical abuse are reasons a judge will issue a TPO.

If Mr. Schwartz leaves voluntarily and for an extended period of time, Mrs. Schwartz could change the locks.   There isn’t a law supporting changing the locks.   It’s more of your right to feel safe in your own home.   If your spouse left, and you don’t think they are returning then you can change the locks to protect your home.  The facts need to be they left the house voluntarily for an extended period of time, and didn’t appear to be returning.    You can’t change the locks if they only went to work for the day

Those are Mrs. Schwartz’s options.   A TPO,  changing the locks after he leaves voluntarily, or filing a divorce and then filing a motion for possession of the home.    Mr. Schwartz isn’t abusive and he isn’t leaving voluntarily.  The temporary orders is going to be her best option.