One of the biggest initial concerns when you file for divorce is how to keep your spouse out of the house until the divorce is final.
There are a lot of good reasons to be concerned about this.
At best, living in the same house with your spouse while you are getting divorced could lead to some very awkward moments.
At worst, living in the same house with your spouse during divorce could lead to nasty verbal or even physical confrontations.
So how do you keep your spouse out of the house during your divorce?
There are several options but it is important to remember that, absent agreement between the spouses or exceptional circumstances involving family violence, there is no immediate option to force your spouse out of the house.
By Informal Agreement
The first option is to come to an informal agreement between you and your spouse. This could be done verbally.
Preferably, this would be done in writing. Texas rules allow you and your spouse to enter into enforceable agreements if certain requirements are met. This could be as simple as documenting the agreement in writing signed by both of you and your attorneys.
If needed, you can file that agreement with the court and it then becomes an enforceable agreement between you and your spouse.
By Formal Agreement
In some cases, one or both of the spouses will ask for the court to issue temporary orders. Temporary orders govern the conduct of the parties during the divorce with an eye toward maintaining the status quo while preserving community property until the court renders a final decree of divorce.
Temporary orders can be contested in which case a judge renders an order on the disputed issues after a hearing. You and your spouse can also enter into agreed temporary orders that you file with the court.
This makes your agreement regarding who remains in the house a court order – hence the formal agreement aspect.
By Court Order
So what happens if you and your spouse do not agree on who can stay in the house during the divorce?
In that case, you would request the court to issue temporary orders as discussed above. The difference in these circumstances is that it is a contested hearing with no agreement between you and your spouse.
A court will not make a final decision on property division at a temporary orders hearing, but the court can decide which party will have possession and access to the house.
You have the burden of persuading the judge why the court should allow you to stay in the marital residence during the divorce and your spouse relocate.
If a court awards you custody of minor children, then it is likely the court will award you the exclusive right to remain in the residence so that the children can remain in the environment that they are accustomed to living in.
But what factors would a court consider if there are no children in the marriage?
The court might consider the relative earning capacity of you and your spouse in relation to your abilities to afford alternative housing. The court might also consider family and other alternatives available to you and your spouse during the divorce. The court will also consider whether remaining in the house would be more beneficial to you or your spouse.
Court’s have the power to issue temporary restraining orders (“TRO’s”) for the purpose of protecting people or property. TRO’s are common early in divorce cases. However, a court can only issue a TRO ordering a spouse out of the house in limited circumstances.
Courts issue TRO’s ex parte – which means upon request of one spouse without a hearing or participation by the other spouse against whom the TRO is issued. Texas law places strict rules on TRO’s because the other spouse does not have an opportunity to participate in defending against the TRO,.
For example, the court must schedule a hearing on the TRO within 14 days when it issues the TRO. TRO’s expire after 14 days unless the court converts the TRO into a temporary injunction at a temporary orders hearing.
Texas law also prohibits a court from issuing a TRO that excludes a spouse from occupying the residence where that spouse has been living except in the case of protective orders to prevent family violence.