For some couples, there’s a point in the marriage where living together is difficult, unfeasible, or harmful to a certain party. One spouse may be wondering if they could legally kick out their husband or wife from their marital home. At our firm, we sometimes get questions like “Can I change the locks on my spouse?” or “Can I lock my husband out of the house?”
The answer is no, a wife or husband cannot just force their spouse out of their residence except in a few exceptional cases. Below are some situations and legal implications of evicting one’s spouse in Georgia. For specific guidance on your situation, it’s best to consult a Family Law attorney.
Under Georgia law, both spouses have equal rights to their marital home until a court order says otherwise. Thus, one spouse cannot just kick their husband or wife out of the home without a court order.
This applies even if only one spouse’s name is on the title, or even if the couple is going through a pending divorce. As long as the court has not given an order on who gets the house, it remains marital property and both spouses continue to have equal rights to it. In fact, in divorce cases, the court does not look favorably on a spouse who kicks out their husband or wife without legal standing.
There are a few exceptions to this. One is if there are allegations of domestic violence and the alleged victim gets a temporary restraining order, an emergency protective order, or an exclusive possession order from the court. This will likely require the alleged abuser to leave the shared residence. Note that an exclusive possession order does not mean permanent ownership of the home. It is only a temporary arrangement by the court while the divorce is not yet final.
Another potential exception is if one spouse solely owns the home. If they purchased the house before getting married, and if the other spouse has not contributed to it, it’s possible that the house is separate property, not marital property. With one spouse as the sole owner, the other could be determined as a tenant who may be legally evicted. However, this is a complex landlord-tenant matter, and courts are often reluctant to grant evictions to married spouses.
In short, it’s never advisable to kick out your spouse without a court order, even if you assume you are the sole owner of the house.
The first thing to ask is whether your spouse has obtained a court order giving them exclusive possession or ownership of the house. If they don’t have this order, you still have the rights to access and occupy the residence.
Speak to a reliable attorney immediately. With your lawyer’s help, you can get the assistance of law enforcement so you can enter the house again. If you need temporary shelter, or if it’s not advisable for you to return to the home, consider asking for temporary assistance from family or friends, or from community resources. A good lawyer should be able to point you to your best options.
Avoid trying to break the lock yourself or being hostile towards your spouse, especially if your divorce process is pending. Instead, discuss with your attorney about your divorce strategy. The act of denying you entry to your marital home should sway the court’s favor away from your soon-to-be ex-spouse.
In some cases, one spouse moves out voluntarily, either due to a mutual decision to separate or as a way of deserting the marriage.
If you and your spouse have mutually agreed that he has to physically leave, he may agree that you change the locks to the house, but it’s wise that you get this in writing. With the help of a lawyer, sign an agreement with your spouse stating that he is leaving voluntarily.
In this scenario, it’s crucial that you keep communication lines open and that you inform him of changes you plan to do to the house. Keep in mind that he still has rights to the house, pending the court order. Before calling a locksmith, it’s wise that you discuss with him his moving-out schedule, collecting his belongings, and related arrangements.
On the other hand, if your spouse has deserted the marriage (unilaterally left for at least a year without justifiable reason), it is more likely that the judge will rule in your favor as to who gets the house after divorce. Once the court grants you ownership of the home, you can then change the locks as you wish.
However, if your deserting spouse comes back “in good faith” while the court order is pending, it’s in your best interest to accept him back into the home. If you refuse, it can be an opportunity for him to turn the tables and accuse you of deserting him. Instead of locking him out of the house, speak to your attorney about your strategy going forward, given your spouse’s desertion and return.
Living arrangements during divorce is rarely a straightforward matter. To avoid making legal mistakes during this complicated time, consult with a trusted Family Law attorney. In Gwinnett County, Attorney Sharon Jackson has earned the trust of individuals trying to navigate divorce or separation. With her 20+ years of legal experience, she has helped her clients get favorable outcomes even in complex divorce cases.
Consult with Ms. Jackson about your case today by calling (678) 909-4100 and schedule a consultation.