Are you concerned with whether your spouse can throw all your belongings out on the front lawn, change the locks to the front door and effectively bar you from ever entering your house again? Depending upon the circumstances that you are facing in your case this may be a real-life Consideration for you to think about. We see this type of thing happen in movies and television shows regarding marital infidelity or other troubles. Is it something that you should be thinking about as a real possibility for your situation?
There is something about divorce that can cause us to think about the most extreme possible circumstances. When times are good and normal, we could probably chuckle to ourselves about the idea of our spouse throwing us out of the house and throwing our belongings out with us. That would seem too far-fetched to ever happen. However, when we are facing a real-life circumstance like a divorce these types of scenarios for whatever reason tend to seem more likely to happen. As such, here you are on the blog of a family law attorney trying to learn more about whether your spouse can kick you out of the house and prevent you from accessing your belongings and more importantly your children.
Texas is a community property state
I think it is important to begin an analysis of this question by stating that Texas is a community property state. We have all heard the old expression that possession is nine-tenths of the law. This would seem to mean that he or she who holds property physically is the owner of the property. In some states in the country, there is some truth to this. However, Texas is a community property state. This means that if the property was purchased or acquired during your marriage then more than likely it is subject to division in the divorce. It does not matter who physically has the property, whose name appears on the title documents to the property, or even whose income was utilized to purchase the property. All that matters is the time that the purchase or acquisition occurred.
This is relevant to our discussion of your spouse kicking you out of the house because so long as that house was purchased during your marriage it does not matter if you are not able to gain access to the home at this very moment. The simple fact that the house was purchased during your marriage would make it Community property and would need to be divided in your divorce. Whether your spouse changes the locks and kicks you out does not make a difference. Your divorce will not end without the house being divided or otherwise dealt with in some way.
If your spouse has kicked you out of the house and is not allowing you back in then you should not go to great lengths order to get back in. It does not feel good to be kicked out of your home. Additionally, your spouse may have prevented you from being able to access important documents, your computer, and even your children during this time none of that is right and none of it is going to make you feel like you are being treated fairly in the divorce process. However, that does not mean that you should try to sneak into the house, break in or do anything else that would put you or your spouse in harm's way. Simply put, the Community property laws of Texas protect you against this type of seizure of your property and will help you to be able to account for the property that you own no matter if you were being wrongfully prevented from entering the home.
Separate property considerations in a Texas divorce
Additionally, you also must bear in mind that both you and your spouse will likely own separate property that was either purchased or acquired before your marriage or acquired by either gift or inheritance during the marriage. These types of property will not be subject to division in the divorce. If there is any question about the nature of the property being separate or community, you will need to be able to show a court that you have purchased the property or acquired the property before your marriage or during your marriage by gift or inheritance. Otherwise, the property will be subject to division in the divorce.
The bottom line for separate and Community property considerations is that it does not matter what a bank account says as far as a name or whether you kept your income from work separate from your spouses. So long as the income was earned during your marriage it is very likely to be classified as Community property. You can keep the money in the same account as your spouse’s income where you can keep it in a separate account. Community property rules will attach no matter where you keep the income or whether it is ever commingled with your spouse’s income.
This may come as a shock to many of you reading this blog post. Oftentimes I will speak to people in free-of-charge consultations with the Law Office of Bryan Fagan and hear about how because the money was kept separate from your spouse is that it would be classified as separate property or not subject to division. Additionally, a presumption that because you earned certain sums of money that the money will necessarily follow you after the divorce is not likely to be true, either. I can see why you and others may hold this belief, but the laws of Texas do not see it that way.
What to do if your spouse kicks you out of the house
If you are facing a situation where your spouse has either threatened to kick you out of the house or has done so, then you need to think about what your options are and what you can do to protect yourself and your family. Probably the most important consideration for you to make is whether you have children. If you do have kids, then being able to remain in the family house probably means a lot more to you than if you did not have children. Since your home is where your kids are being able to spend time with them in the house is probably the most important item on your mind. Being kicked out of the house would mean that you would have limited access to your kids.
Your spouse may approach you and ask if you are willing to leave the house. This would most likely happen if you were the father of your children. I have seen men time and time again agree to leave the house to increase the level of peace and calm while not doing anything brash or otherwise provoking anger on the part of their spouse. You may rationalize the decision to leave the home as being in the best interest of your kids. Not wanting your kids to see fighting or other discord in the home may be enough motivation for you to determine that getting out of the house is a great idea.
However, you should also think about whether to voluntarily leave the home from a strategic perspective. For one, when it comes to custody and conservatorships issues willingly leaving your children with your Co. May make sense to you at the time but ultimately could prove to be a negative for you. The reason for this is that a family court judge could look at you leaving the home as you're being unwilling or unable to care for your children. This may be the furthest thing from the truth, but it can look like you have less of a concern for the well-being of your children than you would otherwise care to believe.
For example, let's think about the situation from the perspective of a parent like you who wants to be able to become the primary caretaker of your children both during and after the divorce. If you willingly leave the home that means you are willingly giving up primary child-rearing responsibilities to your spouse. This can be extremely detrimental to your chances of becoming the primary conservator of your children. From the outside, it can look like you are not interested in taking on the primary responsibility of raising your kids if you willingly leave the home. While this may not be true at all it can give that impression in certain circumstances to certain judges. As such, you should be careful about leaving the home even if you believe that it is potentially beneficial on a short-term basis.
Another consideration for you to think about is how you're leaving the home can impact what happens with the house and your divorce. Leaving the house voluntarily does not mean that you will be barred from trying to make an argument that you should be awarded the house in a divorce. However, it certainly does not help the argument and the logistics of you're getting back into the house can prove to be difficult, as well. This is especially true if you have found another place to live and are renting a home or apartment during the divorce. On many levels, it just makes sense for you to remain out of the house if you have voluntarily left.
What this also means is that if you leave the house voluntarily you should plan on not being allowed back in the house until after the divorce, if ever. leaving the house voluntarily means that you are leaving behind not only your family but also personal effects such as clothing and other items that you may need. If you do, make the difficult decision to leave the house voluntarily you should make sure that you have an opportunity to collect any belongings of yours. This is important not only on a day-to-day level but also regarding being able to make sure that you have documents and other information that could be important for your divorce.
Whatever documents or information in the house that you do not collect would be necessary for your divorce, you may very well need to be able to request those documents either informally through your spouse’s attorney or even through the discovery process. It would be a shame to have to wait for information to be obtained through discovery when you otherwise would have had access to it simply by taking documents from the house that belong to you. This does not mean that you should take things that do not belong to you or certainly not destroy things no matter what. However, it can be difficult to think about these types of subjects as you are planning on leaving the home.
The bottom line is that there are many important considerations to start thinking about when it comes to divorce and leaving the home. Parts are good that you will have a lot on your mind as the opportunity presents itself to voluntarily leave your home. Before you decide to agree to leave the home you should talk with your spouse about the options for your family and decide whether it is truly in everyone's best interest for you to leave. If you and your spouse are on talking terms and are not getting violent with one another it may be best to live in different spaces until you can attend mediation or a hearing with a judge.
Additionally, you may find that by leaving the family home voluntarily you are giving up on some of the goals that you would have otherwise had in your divorce. We have already talked about how becoming a primary conservator or even keeping the house after the divorce can depend in large part upon your being able to stay in the house during the initial stages of your case. For that reason, you should consider whether you have options or if leaving the house truly is the best thing for you and your family.
What to do if you have been kicked out of the house?
if you have already been kicked out of the family house is not the time to panic. Being kicked out of the home does not mean that you will never be able to get back in or that all your property will be last. We have already discussed how Community property laws of Texas apply no matter if you were physically in possession of the house or even able to enter the home. However, finding a place to stay he's important. While your immediate reaction may be to try to re-access the house you should be careful about doing this. Going to great lengths to get back in the house is not necessarily the best decision for you to make. You certainly should not do anything violent or attempt to break into a house if your spouse has changed the locks, for example.
What you can do is attempt to work with your spouse able to retrieve basic personal belongings. Then, the next thing you may want to do is to reach out to an experienced family law attorney to begin the process of filing for divorce or responding to a divorce petition that has already been filed by your spouse. You can speak to the attorney about the circumstances surrounding your being kicked out of the house and what you can do from there. It is likely that if your spouse has filed for divorce, he or she has already asked to judge within a motion for temporary orders to order that their enjoyment and use of the home should not be impeded by you. You can file your counter-petition and ask for temporary orders to the same extent.
At this stage of a case, you and your spouse would likely need to work on getting a mediation date set up so that you all can begin to work on determining issues related to the family home as well as how to handle you're being kicked out. If you ultimately determine that you should remain outside of the house, you should negotiate for an opportunity to retrieve personal items and important documents. All the while, we can begin to work on a plan related to the division of your community property as well as protecting your rights to your home and your children. Working with an experienced family law attorney is a critical part of this process.
Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan
if you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances may be impacted by the filing of a divorce or child custody case.