Unfortunately, some relationships involve violence or threatened violence, the question arises whether the victim can legally get the offending spouse “kicked out” of the home. The answer is yes, under certain circumstances. This article will discuss the process in more detail.
- Authority for the Court to Remove a Spouse from the Home. The Domestic Violence Prevention Act (DVPA) and Family Code § 6340, 6321, and 6324 authorize a court to order the restrained party to move out of property and allow the protected party to use and possess the property under specific circumstances. To read these code sections, click the following links:
- https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=FAM§ionNum=6340
- https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=FAM§ionNum=6321.
- https://california.public.law/codes/ca_fam_code_section_6324
- What Facts Need to Be Presented in Hearing. There are three facts that need to be presented at a hearing:
- That the person staying has a reason to be in the home, specifically, “Facts sufficient for the court to ascertain that the party who will stay in the dwelling has a right under color of law to possession of the premises.”
- That assault or threat of assault is involved, specifically, “That the party to be excluded has assaulted or threatens to assault the other party or any other person under the care, custody and control of the other party, or any minor child of the parties or of the other party.”
- Harm, specifically, “That the physical or emotional harm would otherwise result to the other party, to any person under the care, custody and control of the other party, or to any minor child of the parties or of the other party.”
- Does the person staying have to be the owner of the home? Not necessarily. This question was presented in a case from the Court of Appeals in California, Nicole G. v. Braithwaite, which can be found here: https://scholar.google.com/scholar_case?case=17446401920668045282&q=braithwaite&hl=en&as_sdt=4,5
In this case, the Court ordered Braithwaite to move out of the property and granted Nicole’s domestic violence restraining order against Braithwaite. In that case, the title to the home was still a civil case and a disputed issue between the parties, but the Court was able to exercise the power to order Braithwaite out and allow Nicole to take possession of the home temporarily to protect her.
Consult with the Law Office of David Knecht
If you have questions about removing a spouse from a home or any questions relating to divorce or family law, please contact the attorneys at the Law Office of David Knecht, at 707-451-4502. We have extensive experience in family law and can be a knowledgeable advocate for you.
