This blog is inspired by some cases and consults I have had where a spouse has gone out of their way to get their spouse to leave the marital home.
Many of the consults I meet with have a lot of concern regarding whether it was a good idea or not to either continue to live in the marital home or to leave. While there is no "one size fits all" piece of advice that can apply equally to all inquiring spouses, there are some factors that are worth consideration across the board.
To prepare our readers for what they might expect we will explore the various ways some spouses have tried to trick their spouse into leaving the marital home. We will also discuss some things you should consider before you agree to leave the marital home.
Temporary Restraining Orders Used to Trick Spouses into Leaving the Marital Home
I have represented multiple spouses who, after being served with divorce papers that included a TRO, thought they had to leave the marital home. This is because when they were served with the paperwork, they did not understand what the TRO means.
Often, their spouse wanted them out of the marital home and helped their misunderstanding by telling them that a TRO meant they have to get out of the home and if they do not leave, the police would be called and they would be arrested.
Changing the Locks on the Marital Home
Another tactic I have seen used is changing the locks on the marital home and telling the spouse they are not allowed in the home. This has come up recently in two different consults.
In the first consult, the wife had changed the locks and told him not come home. She had all of his financial documents and his driver’s license. The mand wanted to know what he could do about it.
After talking with him, I found he owned the home and his name was on the deed. I told him he could either:
- call a locksmith to help him get into the home or
- he could let himself in even if he had to take a brick and break a window
The husband was concerned with his wife calling the police on him. I told the man even she does, it's not against the law to break into your own home.
Bring a Witness / Or Record Everything on Your Phone
If she calls the police, I told him not worry about it. Remain calm and tell the police what was going on. If the man wanted to be cautious, it wouldn’t hurt to have a friend come with him who could witness everything.
Failing to bring a witness, he could pull out his phone and record everything. If he does one of those things, it would make it difficult for his wife to make up a story that the husband attacked her or threatened her.
In the second consult, the reverse had happened. The husband had changed the locks on the apartment and the husband wouldn’t let her back into the apartment or let her get her things. I asked the wife whose name was on the lease.
The wife informed me that only her husband was on the lease. It was the same apartment complex, but they had recently changed apartments and when that happened, her name never made it onto the new lease.
This made things a little more challenging because she probably would not get any help from the apartment manager for helping her get into the apartment. I suggested calling the police to at least come out because
- they may be able to help her get into the apartment by talking to her husband
- or failing that may be able to help her get her things.
Depending on the police officer, they may not want to get involved and tell the wife she needed to hire an attorney.
If that were the case, the wife would have the option of either filing for:
- Write of Reentry – through the Justice of the Peace or
- Temporary Orders – through family court
Do I Have to Move Out Because My Spouse Told Me To?
- No, you do not have to leave the home if your name is on the lease or mortgage.
- You do not have to move out just because your spouse tells you that he/she wants you to leave.
- Both parties have a right to stay in the home. No one can force you to leave your residence without a court order unless there is domestic violence.
- In order to get such a court order in a divorce, a temporary orders hearing must be held. During a temporary order hearing, the judge will determine who is awarded the exclusive use of the home. This means that if you and your spouse cannot agree as to who will live where while the divorce is pending, the judge will make a temporary decision for you.
- In some cases, when there are spare bedrooms, the spouses may agree to live together until the divorce is finalized in order to save money and ease the transition for the children. For other families, continuing to live together causes too much stress. The decision to move out is one that should be considered carefully and discussed with a caring family law attorney who can help you make the best decision for you and your family.
Alternative Scenarios Where the Answer Is Not as Clear
- If the marital home is owned by a spouse’s parents and there is no lease agreement. However, they would need to go through an eviction process first.
- If you are common law married and the spouse owned the property prior to the marriage. I had a case where this was the situation and the husband was able to file for an eviction while the divorce was going on and get his spouse removed from the home. Again, the husband had to go through a hearing prior to removing his spouse.
Keep Your Children in Mind During the Divorce
As touched on in our introductory paragraph, whether there are children involved is perhaps the most important consideration. If your position is that your children need to continue to live in the home – and with you as a result – then it may be in your best interest to request that you be given exclusive use of the home.
This is important strategically because what occurs at the beginning and middle of a divorce, such as you remaining in the home and your spouse living elsewhere, is what tends to end up happening ultimately.
In the timeline of a case, a temporary orders hearing is the first opportunity for both parties to appear before the judge that can potentially decide their fate, post-divorce. As it pertains to asking your spouse to move out of the home prior to this hearing, if your spouse actually does move out- and your kids remain with you, that is a huge hurdle for your spouse to overcome in the hearing.
Simply put, since your spouse has moved out, it looks like they are willingly leaving the children behind and that is something that a judge will most likely not look highly upon. This alone can cause a judge to name you the "primary" joint managing conservator which allows you to choose the residence of the children in addition to having the aforementioned exclusive use of the home.
Finalizing the Divorce
As a case moves towards its conclusion, the fact that you have remained in the house and your spouse hasn't can cause a judge to more strongly consider awarding the home to you in a trial setting. Should you and your spouse settle the case prior to a final trial, then it will still give you a strategic advantage that many opposing parties will not risk going to trial.
The reason being that the presumption is so strong that the party that has vacated the home will not be awarded the home in the trial, most people in this scenario will not want to wager additional time, energy, and attorney's fees to find out if they can overcome those odds.
Other factors are important to consider as well when weighing whether to ask your spouse to move out of the home. There are emotional ties that each person living in a house will have that go beyond the structure itself. Memories and nostalgia, even if recent times have been bad, will cause most people to fight hard to remain in the house even if you kindly ask them to leave.
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Other Articles you may be interested in:
- The Dirty Trick of Fake Emails and Electronic Evidence
- The Dirty Trick of the Unenforceable Visitation Order
- Dirty Divorce Trick - Turning into a Temporary “Helicopter” Parent
- The Dirty Trick of Spousal Spying in a Texas Divorce
- The Dirty Trick of Embarrassing your Spouse During a Texas Divorce
- The Dirty Trick of Damaging, Destroying, or Selling Marital Assets in Texas
- The Dirty Trick of Filing for Divorce in Another City
- The Dirty Trick of Moving Out of State with the Kids
- The Dirty Trick of Hiding Assets During Your Texas Divorce
- The Dirty Trick of Wasting Marital Assets or Going on a Spending Spree During Your Texas Divorce
- The Dirty Trick of Engaging in Spousal Starving During a Texas Divorce
- How Much Will My Texas Divorce Cost?
- Should I Hide Money from my Spouse to Get Ready for my Texas Divorce?
- 6 Mistakes that can Destroy Your Texas Divorce Case
Law Office of Bryan Fagan, PLLC | Spring Divorce Lawyer
The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with ar Spring, TX Divorce Lawyer right away to protect your rights.
A divorce lawyer in Spring TX is skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Spring, Texas, Cypress, Spring, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.