Separation and divorce can be messy. While some couples split amicably, others argue for weeks or months on end before the divorce process even begins. No matter the situation, it is important to know your rights and what to expect if you are separating or divorcing from your spouse.
In many situations, couples stop living together well before the divorce is finalized. Usually, one spouse rents an apartment or stays at an alternate location while the other remains in the home. Sometimes, this decision is based on children, while in other situations, the arrangement depends on convenience. It is important to understand that the agreement is usually made between the spouses, but it is possible for the courts to get involved when necessary.
If you and your spouse are separating and determining living situations, understanding key information can help to keep you safe during the transition.
Getting Kicked Out
In most scenarios, one spouse cannot unilaterally make the decision to kick the other spouse out of the home. If the home is shared, both members of the couple have the right to be there. If one of the spouses leaves, it must be a mutual decision, and the moving spouse must go willingly.
This is the case even if only one spouse’s name is on the lease. Because the couple is married, the spouse has a right to be in their own home under most circumstances. The spouse who owns the home cannot kick the other one out without court involvement.
The exception to the above rule is domestic violence. If one spouse is being abused, they may ask the abusive spouse to leave. If the abusive spouse will not, the abused spouse can seek help from law enforcement and the courts. They will often obtain a temporary restraining order that forces the abusive spouse to leave the home and find somewhere else to stay. These restraining orders only last a short period of time until a more permanent solution can be found.
This is the only situation in which one spouse can make the executive decision for the other spouse to leave. In most situations, the moving spouse must agree and willingly leave the home.
Many people do not consider financial abuse when they think about domestic violence. Domestic violence does not need to be physical to be considered abuse. Emotional, sexual, and financial abuse are all types of domestic violence that you should watch for before and during the divorce process.
Financial abuse occurs when one spouse withholds or controls shared money. This may come in the form of an allowance or the understanding that one spouse must ask permission to spend shared funds on reasonable purchases. Unless you are purchasing a large ticket item, you should not feel obligated or coerced into asking permission to use your own money.
Financial abuse commonly occurs during divorce when one spouse works outside of the home, and the other spouse works to run the household and care for children. The earning spouse may use their income as a way to control the other spouse and make it seem as if staying home disqualifies them from accessing shared marital money.
No matter your setup, you should feel as though you are able to purchase everyday items with shared money. Though you should not buy any large or frivolous items for the sake of the divorce process, you should feel comfortable paying for groceries, household items, and care products for yourself and your children. This is true even if you are living apart from your spouse.
If you are concerned or confused about your finances during a divorce, it is important to speak with a divorce or family law attorney. We can help you to navigate your finances and determine what is appropriate and what is not. The more we know about your finances, the better we can build your case.
Sometimes, one spouse believes that they can get the other to leave by changing the locks or locking them out. However, this is not legal to do. If you get locked out of your home by your spouse, you should call the police and your attorney right away. In some situations, the police hand the situation over to the court to determine if abuse is occurring in the home. In other scenarios, the police inform the spouse inside that they cannot legally lock their spouse out of the home. Changing or engaging the locks is not an effective way to remove your spouse from your home.
Many divorcing couples develop a plan so that each member can settle in their own space. Your best course of action is to have a conversation with your spouse about your living situation. However, this is not always possible. Divorcing spouses cannot always communicate respectfully or effectively, which can make the process more difficult than it needs to be.
If you are having a difficult time communicating with your spouse about your living situation, it may be best to volunteer to find your own space. Renting an apartment may ultimately be easier and better for your health than trying to fight to stay in your home. The divorce process takes at least six months in the state of California, which means that you are going to need to feel settled for an extended period. Finding your own apartment or living space may be the best way to achieve stability and peace of mind. Consider this if you and your spouse are frequently fighting over living situations.
Some people mistakenly believe that spouses are entitled to certain privileges or items during a divorce based on their gender. Not only does this assumption ignore LGBTQ+ marriages, but it is an antiquated idea that has not been the reality for many years.
During a divorce, both spouses get an equal amount of assets and privileges. Shared property is split equally, and neither individual is entitled to more based on their gender. This applies even if one spouse worked while the other stayed home. When a couple enters into a marriage, they agree to share all of their assets, finances, and possessions. Though they may have their own setup while married, everything becomes equal in a divorce.
Prenuptial and Postnuptial Agreements
The only situation in which one spouse may have control over an item while the other spouse does not is if the couple has a prenuptial or postnuptial agreement. These agreements exclude certain items and accounts from being considered shared property in the event of a divorce. For example, if a spouse’s trust fund is outlined in a prenuptial agreement, that trust fund isn’t divided in the case of divorce. That fund remains with its original owner, as it was declared as non-marital property before the marriage began.
It is essential to understand that this still does not mean that one spouse can kick the other spouse out of a home, even if the home was part of the prenuptial agreement. If both people live in the home, they both have the right to be there unless they voluntarily leave or there is a court order for one of them to vacate. A prenuptial agreement does not change this.
One of the most complicated and emotional parts of a divorce is deciding the living situation of a couple’s children. Many parents want their children to feel settled and secure, even though their lives are changing at a rapid pace. In many scenarios, this means keeping the children in the family home with one parent while the other parent moves out to live elsewhere. Some couples trade off staying in the family home with the children so that they both have access to their kids without shuffling the children around to different residences.
No matter your living scenario, it is important to keep the arguments and details of a divorce far from children’s ears. Many times, kids understand and hear more than we realize. It is best for their mental health and development to be kept out of any disagreements or arguments between divorcing parents. The more stability you can offer them, the better.
Their living situation during the divorce will only be temporary. During divorce proceedings, you must determine a more permanent schedule for them. This is called a child custody agreement. There are many ways to organize child custody, and your attorney can help you to come up with a plan that works for everyone. Ultimately, the court decides what is best for the children and makes any official decisions with their best interests in mind.
Contact Khalaf Law Group
When you go through a separation and divorce, it is important to have an attorney who understands your unique needs and situation. Our team at Khalaf Law Group has been representing families during divorce for many years, and we have seen a plethora of unique situations. Our experience gives you an advantage in the courtroom and ensures you have plenty of resources on your side during this process. Get in touch with Khalaf Law Group today.