When a couple is going through a divorce, or even just heading towards it, certain issues may make it difficult to stay together under one roof. One spouse may want to kick out the other from their marital home.
Is this legal in Arizona? Can a wife or husband force their spouse to move out before their divorce is final?
Generally, it is not legally possible in Arizona to kick out a spouse pending divorce. However, there are a few exceptions where one spouse may be legally forced to leave the home.
Why You Can’t Kick Out Your Spouse in Arizona
It is common for married couples to purchase their home after getting married. This makes the house a “marital property” or community property. In Arizona, a community property home is owned by both spouses equally, and both have equal rights to stay there.
What if only one spouse was paying for the home? Under Arizona law, any property acquired by either spouse during the marriage is community property. Even if only one spouse paid for the house, and even if only one name appears on the title, it could still be considered community property if they bought it while married.
Even if the spouse started paying for the home before getting married, or even if they inherited it as their separate property, the home can be “transmuted” or changed into community property. This can happen if, for example, the other spouse contributed to mortgage payments, or if the loan is refinanced during the marriage.
You must clarify whether your house is your sole separate property or a community property shared by the two of you. If it is separate property, you may be able to evict your spouse (discussed more below). So long as the home is considered community property, you cannot legally force your spouse out, even if you have started the divorce process.
A spouse may only be forced to leave if or when the court gives an order to do this.
Exceptions: When One Spouse Can Be Forced Out of the Home
There are situations when the spouses must stay away from each other even when they are not divorced yet. A prime example is cases of abuse against one spouse or any of their children. The spouse may request the court for either an Emergency Protective Order or a Temporary Order to exclude the abusive party from the residence.
An Emergency Protective Order can be granted immediately but typically only lasts 24 to 48 hours. It also prohibits the abuser from contacting the victim in any way.
A Temporary Order takes more time to be granted, but it usually lasts until the divorce is finalized. The final divorce order will then mandate how the marital home is to be divided or owned.
Evicting a Spouse
Most of the discussion above applies when the marital home is community property. On the other hand, some spouses solely own the house they live in. A home is one spouse’s sole separate property if they inherited it, received it as an exclusive gift, or bought it before marriage without any contribution from the other spouse. As the sole owner of the home, the spouse then has the right to evict their husband or wife even before the divorce is final.
Eviction is a real estate matter, not a Family Law matter. Thus, if you wish to evict your spouse, you will need to initiate a separate civil proceeding besides your divorce to legally force them out of your home.
Call a Trusted Divorce Lawyer in Arizona
Getting a spouse to move out is a tricky legal situation. If you need this to happen, or if you are the spouse at risk of being kicked out, you’ll want an experienced divorce lawyer on your side. Call the trusted attorneys at Goldman Law. We can competently navigate Arizona Family Laws to find the best relief for you.
Call (602) 698-5520 or use our contact form for a consultation.