Last Updated on January 24, 2023 by Benson Varghese
When a marriage is falling apart, the two parties may not want to look at each other, much less live under the same roof. Often in these situations, one of the spouses moves out while the divorce proceeds to its conclusion. In some cases, both parties intend to remain in the marital home until the divorce is final.
However, if one spouse feels a threat of family violence to themselves or their children from the other party, they may need the court to intervene to get the spouse to leave. In such cases, you must apply for a restraining order and have a hearing before a judge, who will determine the validity of the request.
If facing one of these predicaments, you need an experienced family law attorney. The Varghese Summersett Family Law Group is here to help.
In this post, we’ll explain how Texas courts deal with living arrangements during a divorce, temporary restraining orders, and when it’s legal to lock your spouse out of the house.
Do I have to move out because my spouse asked me to?
No. Neither spouse can force the other to move out if their names are on the lease or mortgage. Both spouses have a right to remain in the home. It will take a court order to force someone from their residence unless, of course, there is a domestic violence component.
Can my spouse cancel our lease on me in Texas?
The person who appears on the lease and is paying the lease can cancel the lease. That means, yes, if your name is not listed on the lease, you could be forced to vacate the home.
What are my rights if my spouse locked me out of the house in Texas?
You can’t force your spouse to leave the home without police or court intervention. If your spouse locks you out of the house and you are not prepared to stay somewhere else for the night, you should call the police to the home. Have a friend with you as a witness on the scene. Be prepared to record a phone video of any incidents with your spouse.
If your spouse refuses to let you in the house, you can call a locksmith to enter the home. If necessary, it’s within your rights to break the door in or a window to enter your home.
If forced to break into your home, it’s good to have video of the moment to show you were not being violent. If the police are on the scene, they could facilitate your entry with the other spouse so that breaking in isn’t necessary. Whatever you decide, it’s important to keep documentation and have proof of your actions to show the court.
Can I get my spouse to leave if I own the house in Texas?
Divorce lawyers are asked this question all of the time. You can’t kick your spouse out of the house even if you own it. In Texas, everything, including a house, is considered community property until it’s proven to be separate property before a judge during a divorce hearing. This includes a house, even if only one spouse is on the lease or title, and the house pre-dates the current marriage.
However, in the long run, the ownership of the house or the proceeds from the sale of the house remains to be determined through the divorce process when a judge divides the community estate between the two parties. The circumstances of each specific divorce factor into the judge’s division of property.
How do you legally get your spouse to leave in Texas?
You can’t kick your spouse out of the house in Texas without first having a hearing before a judge. Kick-out orders in Texas are only possible if there are allegations of family violence. Typically, one spouse can’t get the other spouse to leave the residence unless a protective order application requests specific relief – one spouse requesting the other spouse be removed from the home.
If the judge determines that allegations of family violence are true, they can sign a protective order that excludes the spouse from the marital home.
The Texas Family Code Ch. 38 requires that the requesting spouse must show the court:
* Evidence of family violence by the other spouse
* Evidence that the other spouse committed an act of family violence within 30 days of the application being filed
* The spouse applying for the protective order has lived in the marital home within the previous 30 days
Does a restraining order force your spouse to leave the marital home?
A standard temporary restraining order does not force your spouse from the marital home. In fact, it does the opposite. When a judge issues a TRO, it includes provisions that prevent changing the locks on the residence and excluding the spouse from using the home. Unless there is a threat of family violence, of course, the court will not allow someone to exclude another from their marital home. Until determined otherwise, it’s their legal property, too. Forcing the spouse to leave the home would deprive them of their property without due process.
What are temporary orders hearings in Texas divorce?
Temporary orders are used as a means to get an agreement about child custody and spousal support in place while the divorce process plays out. Temporary restraining and protective orders are emergency agreements used to protect the safety of a child or spouse. During the temporary orders hearing, the judge determines who has exclusive use of the marital home if the two parties can’t agree on an arrangement while the divorce is pending. This hearing is the first chance for both parties to appear before the judge, who can potentially decide on the details of the final divorce decree.
Whether you need to leave the marital home or want your spouse to leave, these decisions should be carefully considered with the help of a trusted family law attorney. An experienced family law attorney will help guide you through the pros and cons of each decision and help you decide what is best for you and your family.
What is a two-year protective order or permanent protective order in Texas?
Permanent protective orders are in effect for however long the judge allows in the order. Generally, they last for up to two years, but a judge can issue a longer order if:
* The respondent committed an act of family violence considered to be a felony offense against you or a member of your family or household, even if they were never charged or convicted;
* The respondent caused serious bodily injury to you or a member of your family or household; or
* The petitioner had two or more previous protective orders issued against the respondent, and in each prior case, the judge found that the respondent committed family violence and was likely to commit family violence in the future.
The respondent can file a motion seeking the order to be discontinued through a hearing on its merits after a year has passed. If there is no time period written in the order, it expires on the second anniversary of the date the order was issued.
To win a two-year protective order, however, the other party must be given notice and a chance to appear in court to dispute the order.
Will my spouse be notified of a kick-out order before they go into effect?
Yes, a judge could be required to give notice before a kick-out order goes into effect and forces the spouse to leave. If you feel an immediate threat of violence from the spouse, you should contact law enforcement before the order goes into effect.
What happens if both spouses file kick-out orders against each other?
If both spouses file for kick-out orders, the judge will hear both sides and determine a plan accordingly. The judge will attempt to resolve the conflicting kick-out orders so that both spouses can, perhaps, remain in the same marital home until the divorce is finalized.
How long does a kick-out order last in Tarrant County?
The length of a kick-out order in Texas varies. A judge can make an order as short as 30 days before reassessing the specific situation. The judge could order the kick-out to remain in effect and force one spouse to leave until they determine who will win the marital home’s primary residence and the divorce is finalized.
When should you remain in your house during a divorce in Texas?
If you want to continue to live in your house after a divorce is final, are fighting for child custody, or don’t think it’s fair to pay for the house while your soon-to-be ex-spouse lives in it, it’s wise to continue residing in the home.
Why is remaining in your marital home during divorce smart in Texas?
If you move out immediately, you’re giving the judge a precedent to create an easy way to determine who deserves to remain in the house or win custody of the children if you leave children with your spouse in the home. The court could assume you weren’t too concerned about your children, belongings, or returning to live in the house if you’ve already moved into another place.
In contrast, if you remain living in the marital home while claiming your spouse is violent and a danger to you and your kids, the court is less likely to take your family violence claims seriously.
It’s important to note that temporarily staying somewhere else for a week will not doom your case before a judge. If a spouse feels the other party is unstable and capable of violence or dangerous behavior, taking a break apart might be the wisest move. And if it’s explained adequately to a judge, it would be appreciated. A good family law attorney will facilitate these complexities.
Another essential factor in this situation is proof of behavior. If you can show audio or video evidence of your spouse’s abusive or violent behavior, a judge will likely understand why you needed to move out for a few days.
If you have evidence proving the threat of violence, then filing for a protective or kick-out order is imperative. If you fear for your safety, it’s wise to move out while you wait the usual 14 days to get a temporary order hearing.
What is an ex parte protective order in Texas?
Ex parte protective orders in Texas are temporary orders to prevent a threat of immediate harm and force the spouse to leave the home. These are also known as emergency protective orders. Ex parte protective orders are usually valid for 20-day increments.
Ex parte is Latin for ‘from one party.’ In divorce proceedings, it means a motion for an order can be granted without waiting for a response from the other party. If the requesting spouse seeks to extend the ex parte order, the requesting party would appear at another hearing before a judge.
In some cases, the court will motion for an extension. Texas does not require that the excluded party be present during the hearing to execute the temporary ex parte protective order.
Texas Family Code requires an application seeking to exclude your spouse from the marital home. It must include an affidavit of the facts and circumstances for why the spouse must be excluded. The person to be excluded must have committed family violence against another household member within the past 30 days. The judge must also find proof that the spouse is likely to again commit family violence against someone in the household.
Can a spouse fight an ex parte order in Texas?
Texas Family Code Chapter 83 allows the court to recess an ex parte hearing to contact the respondent by telephone and give them an opportunity “to be present when the court resumes the hearing.” The court, however, reserves the right to resume the hearing whether or not the respondent can be present before the end of the working day.
The respondent has the right to file a motion to terminate or vacate the temporary ex parte protective order.
The respondent does have the right to file a motion to terminate or vacate the temporary ex parte protective order. The court must schedule a hearing as soon as possible on the matter once a motion to vacate is filed.
Do you need your spouse to leave in North Texas? Call us.
Are you dealing with a messy divorce? Are you in fear for your safety or the safety of your children? Have you been locked out of your marital home? Or do you need your spouse to leave the marital home before the divorce is final?
For all of these scenarios, you need a family law attorney with a deep understanding of Tarrant County’s family law courts. The Varghese Summersett Family Law Group has more than 30 years of combined experience fighting to win the best possible results for our clients.
For a consultation on these matters, including your options for staying in your marital home during and after your divorce, child custody, and temporary ex parte orders, call us at 817-900-3220.