Mr. & Mrs. Todd

Posted: 20 October, 2020

Mrs. Todd is filing for a divorce and would like her husband, Mr. Todd, to leave the home.  Can she evict him?

The Todd’s have been married for 10 years.  Mrs. Todd owned the house they are living in, prior to the marriage.  The title is in her name, and the mortgage is in her name.   Can she evict him from the home?

The simple answer is no, she cannot evict him.   Eviction is a legal process used by a landlord to remove a tenant.  Spouses are not tenants, or landlords.  Under Nevada law, which is a community property state,  both spouses have a legal right to live in the marital home.   Even with the home being titled in only her name.

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.  Spouses cannot evict spouses, unless they have an order from divorce court.

A divorce can take six months or longer.  Mrs. Todd doesn’t want to live in the house with Mr. Todd while the divorce is going on.  So, what does she do?

After we file the divorce papers, we would file a request asking the judge to give her “exclusive possession” of the home.   This request is called a “motion for exclusive possession” and is a typical request.  Most divorcing couples feel uncomfortable living in a house together.    The majority have already physically separated before the divorce is file, but this is not always the case.

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, is no physical abuse. She just feels uncomfortable living in the home with him.  She feels the home is hers because  she purchased it before the marriage.

Our best argument is that the house is Mrs. Todd’s separate property and will be awarded to her in the divorce.  If we can show the likelihood of the home being her separate property, the judge may be convinced to give her possession now.  To bolster her argument, she would need to show Mr. Todd has a place to stay, and they have enough community funds to afford two households.

There are cases where the finances of a second home is simply not feasible.  The community must have enough funds to afford two rents, or mortgages, two utility payments, etc.  If she can show the home is likely to be her separate property, and the affordability of two households, the judge may give Mrs. Todd exclusive possession.

Granting exclusive possession is just a temporary order.   The judge hasn’t made 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.   Most property acquired before the marriage is separate and not divided.

Even if the judge awards her exclusive possession, Mr. Todd may be able to show a portion of the equity in the home is community property.  The house may be part separate property (the equity in the home before the marriage), and part community property (the equity in the home after the marriage).  The permanent order, which decides how much is separate property and how much is community property, is decided at the divorce trial.

What if Mr. Todd leaves voluntarily? If Mr. Todd voluntarily leaves, Mrs. Todd may have another option. If a spouse leaves for an extended period of time, you can change the locks.  There isn’t a law supporting her changing the locks.   But, judges can’t do too much if the spouse left voluntarily.  If Mr. Todd left the house voluntarily, and has been gone for an extended period of time,  Mrs. Todd could change the locks.  This would give her defacto possession.

Mr. Todd didn’t voluntarily leave.  But,  the court did grant her exclusive possession.   We showed the court the property was likely to be Mrs. Todd’s separate property, and the Todd’s could afford two households.