- December 23, 2015
- Posted by: admin
- Category: All, California Divorce, California Family Law, Divorce, Divorce Attorney, Family Law, Orange County Divorce Attorney, Property Division
Unless the judge issues a restraining order, the judge does not have the authority to kick one spouse out of the family residence. A husband/wife filing for divorce cannot kick the other out of the home/apartment.
In fact, they can’t even go to court and ask the judge to kick the other spouse out of the house. However, if one party gets a restraining order against the other, then the restrained party will likely not be allowed to come within 100 yards from the protected party, their car, their residence (even if it is your residence too), their workplace, etc. But aside from issuing restraining orders, the court does not have the authority to kick either spouse and the rule applies whether they live in a mansion, an apartment, or even the home of one of spouse’s parents. If the home or apartment you live at is your legal residence, you will have to be legally forced to leave by way of an eviction process.
One concern when spouse live together after one has filed for divorce and there are animosities between them. If it gets ugly, it is not uncommon for one party to fake injuries or fake threats and call the police in order to start the restraining order process. Say for example a wife wants her husband to leave the family home but he won’t leave. She could simply lie about threats, or scratch herself and call the police. When the police arrive, she could simply tell the police her husband scratched her and the husband could easily be arrested.
Very importantly, restraining orders come with a very serious automatic presumption under California Family Code Section 3044. That presumption says that there is a presumption that any person who has committed domestic violence against anyone in their home or anyone they are related to within the preceding five years, should not have custodial time with their child/ren. However, this is a “rebuttable” presumption. What that means is the presumption can be fought. Assuming that person did not harm the child, the party may be able to fight the presumption and still get some custodial time with their child(ren).
These are very serious issues. If you are involved in these types of issues, call us, we always provide free initial consultations. (714) 730-0111.