Divorce is an emotionally and legally complex process, and one of the most contentious issues couples face is deciding who stays in the marital home. In Florida, both spouses generally have equal rights to reside in the marital home during a divorce unless a court orders otherwise. This leads many people to wonder: Can you legally kick your spouse out of the house during a Florida divorce?
As a Tampa divorce lawyer, I have guided numerous clients through property disputes, including those involving marital homes. This article will explain the legal rights regarding marital residences in Florida and the circumstances under which a spouse can be legally removed from the home.
Legal Rights to the Marital Home in Florida
1. Florida’s Equitable Distribution Law
Florida follows an equitable distribution model when dividing marital assets, including the home. This means that unless a couple has a prenuptial agreement specifying otherwise, both spouses have equal rights to the marital residence.
2. Ownership vs. Right to Stay in the Home
- If the home is jointly owned, both spouses have an equal right to reside there until a divorce agreement or court order dictates otherwise.
- If only one spouse is on the deed or mortgage, it does not necessarily mean they can force the other spouse to leave.
- Courts typically view the home as marital property, regardless of whose name is on the deed.
Can You Force Your Spouse to Leave the House?
1. Mutual Agreement
The easiest way to resolve a living situation during a divorce is through mutual agreement. If one spouse is willing to leave voluntarily, it can prevent unnecessary legal battles.
2. Exclusive Use and Possession Orders
If no agreement can be reached, a spouse can request an exclusive use and possession order from the court. A judge may grant this request in cases where:
- One spouse needs the home to maintain stability for children.
- The other spouse has committed domestic violence.
- There is evidence that cohabitating will cause severe emotional or financial hardship.
3. Domestic Violence Injunctions (Restraining Orders)
If there is a history of domestic violence, a spouse can seek an injunction (restraining order) that may force the abusive spouse to leave the home. Courts prioritize safety and well-being when granting such orders.
4. Temporary Orders for Exclusive Possession
During the divorce process, a judge can issue a temporary order granting one spouse exclusive possession of the home. Factors considered include:
- Best interests of children
- Financial ability of each spouse to relocate
- History of abuse or threats
What If Your Spouse Refuses to Leave?
If your spouse refuses to leave the home, you cannot simply change the locks or force them out. You must follow the legal process:
- File for Exclusive Possession – If you have valid grounds, your Tampa divorce lawyer can petition the court for an order requiring your spouse to leave.
- Request a Temporary Order – While waiting for the final divorce ruling, you can seek a temporary order to determine who stays in the home.
- Seek a Domestic Violence Injunction – If abuse is involved, an injunction can legally remove your spouse from the residence.
What Happens to the Marital Home After the Divorce?
Once the divorce is finalized, the court will determine what happens to the marital home:
- One spouse may be awarded the home as part of equitable distribution.
- The home may be sold and proceeds divided.
- A spouse keeping the home may be required to buy out the other spouse’s share.
FAQ
1. Can I change the locks to keep my spouse out of the house?
No, unless you have a court order granting you exclusive possession, changing the locks could be considered illegal.
2. Can I call the police to remove my spouse from the home?
Police typically do not get involved unless there is a domestic violence injunction in place.
3. Can my spouse kick me out if they own the house?
Not necessarily. If the home is considered marital property, both spouses may have rights to reside there.
4. How does a judge decide who gets to stay in the house?
Judges consider factors such as child custody arrangements, financial ability to move, and any history of domestic violence.
5. Will the court force my spouse to leave if they are abusive?
Yes, if there is evidence of domestic violence, the court can issue a restraining order that forces the abusive spouse to leave the home.
6. What if my spouse refuses to leave even after the divorce is finalized?
If your spouse was ordered to leave but refuses, you may need to file a motion for enforcement with the court.
7. Can a spouse refuse to sell the house in a divorce?
A spouse may resist selling, but a court can order the sale if necessary for equitable distribution.
8. Can I stay in the home if I have full custody of the children?
Courts often favor allowing the custodial parent to remain in the home for the children’s stability.
9. Does an affair affect who gets to stay in the house?
Not directly, but if marital funds were misused during the affair, it may influence property division.
10. Should I hire a Tampa divorce lawyer if I want to keep my home?
Yes, an experienced lawyer can help you negotiate or litigate for your right to stay in the marital home.
Conclusion
Kicking your spouse out of the house during a Florida divorce is not as simple as many believe. Without a court order, both spouses typically have equal rights to the marital home. However, if there are issues of domestic violence, financial hardship, or child custody concerns, a Tampa divorce lawyer can help you petition for exclusive possession. Understanding your legal rights and options is crucial to ensuring a fair and legally sound outcome in your divorce case.
The McKinney Law Group: Tampa Divorce Lawyers Committed to Your Best Outcome
Divorce is a life-changing event, and the decisions you make now can affect your future for years to come. At The McKinney Law Group, we provide expert legal representation for Tampa residents facing divorce, custody disputes, and financial settlements.
Our firm helps clients with:
✔ Dividing marital assets, including homes and retirement accounts
✔ Determining fair alimony and spousal support
✔ Developing child custody and time-sharing agreements
✔ Handling high-net-worth divorces with complex assets
✔ Post-divorce modifications and enforcement of court orders
We work hard to protect your interests, secure your financial future, and ensure a fair resolution.
For trusted divorce representation in Tampa, call Damien McKinney at 813-428-3400 or email [email protected] today.