Accepting that you need to separate from your spouse is a difficult process. However, no matter how a person comes to that decision and what the reasons are behind it, once a person decides that they need to separate from their spouse, the most common question that comes next is, “Now, how do I get my spouse out of the house?”
The first option, and the easiest, is for you and your spouse to agree to physically separate. If you can sit down with your husband or wife and discuss the need for some time apart and your spouse agrees to leave—even if just temporarily—this is the simplest and certainly the most cost-effective method.
In your conversation, you will need to address who will pay the mortgage, insurance, utilities, and other carrying costs of the home, and what your estate can afford regarding where your spouse will live during this time. Even if you and your spouse are not on the same page about how long this separation will be, you must ensure that the financial details and parameters are understood by both of you and sustainable for longer than you may initially anticipate.
In Texas, if the house was purchased during the marriage, it is presumed to be community property, and so its expenses are liabilities of the community as well. Similarly, any expenses your spouse incurs to set up their own home during the pendency of the divorce will also be community expenses in Texas.
The experienced family law attorneys at Brousseau Naftis & Massingill, P.C. have decades of experience representing clients in divorce, custody, and other family law matters. For more information, contact us today for a no-obligation consultation.
What If We Can’t Come to an Agreement?
If your spouse does not agree to leave the house, the only other ways to remove them from the house are through legal action—either by calling the police, applying for a protective order, or divorce. You cannot otherwise evict your spouse from their homestead without utilizing one of these measures.
Calling the Police
In Texas, the police can only remove your spouse from the residence if you make a valid criminal report against them, such as an assault or terroristic threat (any threat of violence against you or your family). After you call the police to report that a crime has occurred or is ongoing, the police will come to your home and either tell your spouse to leave for the evening to keep the peace or, if the facts warrant it, arrest them.
Either way, the removal of your spouse through this method is temporary, as the police cannot legally keep your husband or wife from returning to their home with a court order. If the police arrest your spouse for a family violence offense, you can request an emergency protective order from the police—or a magistrate’s order—which will prevent your spouse from coming near you or your home for a limited period.
Depending on the underlying family violence offense and circumstances, these orders can last between 30 and 90 days.
Protective Order
In Texas, if family violence has occurred, you can also file an application in Family Court for a protective order that legally prevents your spouse temporarily from returning to your residence. For this process, you will need to sign an affidavit and provide live testimony to the Court representing that there has been family violence committed against a member of the household in the 30 days prior to the application. If the Court makes these findings, they can issue a protective order excluding your spouse from the residence temporarily.
Divorce
Without family violence and the potential for additional family violence, the only remaining method to get your spouse out of the house in Texas is to file a Petition for Divorce and request that the Court issue temporary orders providing that your spouse vacate the residence.
For the hearing on your request, you will need to present a plan to the Court about how the estate will pay the expenses of both the marital residence and your spouse’s residence. Other factors the Court will consider when making this decision are whether either spouse owns a separate property interest in the home; whether it would be more difficult for one party to move from the home, i.e., if there is a home office or other feature of the home that is needed by one party; or, if there are children involved, the possession schedule for the children.
The bottom line is that, once you are ready to move forward with a physical separation from your husband or wife, you do have options depending on your unique circumstances. Our best advice on how you should proceed will come after a consultation during which we can learn more about your individual situation.
