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Kicking a Spouse Out of the Home

I watch the search requests that bring people to this site and a recent one brought up a difficult issue.  The person wanted to know if the wife could be “kicked out of the house.”  This question is similar to another one I frequently get which is whether there is any problem with changing the locks to try to keep the other spouse out of the home.

In the absence of violence between the spouses, it is difficult to get a judge to order one of them to vacate the home.  I recall one case where the wife claimed the husband was emotionally abusive and “burned her blanky.”   I don’t recall the exact details of the blanky-burning but at the hearing they came across as childish but not dangerous and the judge denied the wife’s request for exclusive possession of the house.      

The only situation where I have been able to do it in the absence of domestic violence is where one spouse has been unfaithful and there is strong evidence of it.  In one case the wife had been engaged in a long-term, same-sex relationship and the husband stumbled upon some explicit photos of the two women engaging in oral sex.  In another, the wife was committing adultery and we had very some graphic emails between her and the boyfriend talking about what they had been doing.  

If there is domestic violence, the victim can apply for a protective order.  The protective order will grant them exclusive possession of the marital residence.  That means that if the excluded spouse comes onto the property, the spouse who was granted possession can call the police, show them the order and the police will direct the violating spouse to leave.  If the spouse was served with the protective order before coming to the home they will be charged with the crime of violating it.  

Where the parties own the home jointly, changing the locks is not illegal.  All the change accomplishes, however, is to make it take longer for the other spouse to get in.  As an owner, they can break a window to gain entry.  Destroying your own property is not a crime.   The two spouses could theoretically engage in a locksmith duel with each changing the locks on the other in an endless tit for tat because they have equal rights.

In the case of apartments the matter of possession is more complicated because neither party owns the place.  Breaking a window is destruction of the landlord’s property and illegal.  The locks belong to the landlord and you don’t have the right to change them.  So not renewing the lease in both names may be the best you can do.   

When the family is living in government housing, the non-service member spouse may be at a disadvantage.  If the service member moves out, the government can reclaim the premises forcing the remaining spouse to move as well.  This can be a hardship if the remaining spouse is a mother with young children.  

When the wife is the initiator and the husband consults me about what to do, I tell them they don’t have to move out just because the wife wants it.  I also tell them that if they stay they face a risk that the wife may make a false claim of domestic violence to get them out.  If the wife is an honest person who would not stoop to that, then my recommendation is to decline the invitation to leave.

As always, reaching an agreement about who will live where is the best option.  If the other spouse won’t make a deal, though, you may have to move out yourself.  I have had several cases where the husband was a layabout and not pulling his weight but refused to move out.  The wives in both cases had to be the ones to get a new place.  

About the Author

Robert Jeffries
Robert Jeffries
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