Overview:

Before you even file for divorce, or shortly after filing, you are probably wondering: who has to leave the house in a divorce? This article will explain the court orders/circumstances that determine who has to leave the house.

Technically, once a divorce is filed and served, the law does not require either spouse to leave the house right away. However, throughout the lifecycle of a divorce one spouse may be awarded use of the house, thereby causing the other spouse to leave. This often happens under one of three circumstances: (1) temporary orders, (2) an order of protection, and (3) an eviction.

Temporary orders can cause one spouse to leave the house in a divorce.

At the time a divorce is filed, or anytime afterwards before the divorce is finalized, either spouse may file for and request temporary orders. Temporary orders are governed by A.R.S. 25-315 (specifically B through F), and further clarified by Rule 47, Arizona Rules of Family Law Procedure.

You can request temporary orders by filing a motion. In the motion you can request a variety of things, including equal division of liquid assets, temporary financial support from your spouse, and parenting time. Most pertinent to this article, 25-315(C) also allows the court to grant relief “Excluding a party from the family home or from the home of the other party on a showing that physical or emotional harm may otherwise result.”

Rule 47 of the Arizona Rules of Family Law Procedure provides more information on what is required when filing a motion for temporary orders. “The motion shall be filed after or concurrently with the initial petition, shall incorporate the relevant allegations of a filed petition by reference and not separately repeat them, and shall include the following information and documents, where relevant:” legal decision-making and parenting time, child support, spousal maintenance, property, debt, and attorney’s fees.

“If a party seeks temporary orders to exclude a party from a residence, to divide community property, or to order payment of debt, expenses, or attorneys’ fees, the motion shall set forth the specific relief requested, the proposed division of property, the income and assets that will be available to each party, and the responsibility each will have for payment of debt, expenses, and attorneys’ fees if the order is granted.” (emphasis added to quote).

Both spouses can request exclusive use of the marital residence. In such a scenario, there is no guarantee that the court will award you exclusive use. The court can consider all relevant factors, which could include whether one spouse has already moved out of the residence, whether one spouse has more realistic alternative living arrangements (such as nearby family, or a separate home), financial circumstances of the parties, children’s living arrangements, and the primary caretake for the children. Of course, there might be additional factors that the court considers when deciding which party to award exclusive use of the marital residence.

Once the court has awarded exclusive use of the marital residence to one party, this resolves the issue of who has to leave the house in a divorce. The party who did not receive exclusive use must leave the house, at least on a temporary basis. The exclusive use temporary order will be in effect until either the divorce is finalized (at which point the court will have to order a long-term solution for the house, such as selling it or awarding it to one party), or another temporary order is entered. (See ARS 25-315(F)). Because courts are generally backlogged with divorce cases, it is less likely that the court will enter a second temporary order. This means it is likely that a temporary exclusive use order will last for the entirety of the divorce case.

An order of protection can make one spouse have to leave the house in a divorce.

One spouse can get an order of protection against the other. If a divorce case has not been filed, then you can seek an order of protection through your local municipal or justice court. However, if a family case (i.e., divorce) between you and your spouse is filed/active, then all order of protection matters must be filed and/or moved up to superior court. This would mean that you would need to file for an order of protection with your local county superior court.

An order of protection (colloquially referred to as a restraining order) can be granted if your spouse has committed a crime of domestic violence against you (harassment or assault are perhaps the most common types of domestic violence) or the court would find that your spouse is reasonably likely to commit an act of domestic violence against you.

If you are granted an order of protection, then the order would prevent your spouse from having direct contact with you, and the court can also restrict the methods of communication your spouse is allowed to have with you, such as text, phone, or email. In addition, the order of protection would also include a protected address, or addresses, such as your residence and/or place of employment. Therefore, an order of protection can effectively cause the offending spouse to move out of the marital residence if the victim spouse successfully obtains an order of protection and the marital residence is included as a protected address.

An order of protection is typically served by the sheriff’s department. Once served, the offending (defendant) spouse is typically allowed a one-time visit (with law enforcement) to obtain his/her primary belongings so he/she has enough personal items to get by. This is not a substantive division of assets, but rather more of a gathering of personal effects like you were going on a prolonged trip.

Once an order of protection is obtained, the defendant spouse has the opportunity to request one hearing to contest the order. After that hearing, the court can vacate, modify, or affirm the order of protection. If affirmed, then the order protecting the marital residence address would remain in effect, keeping the defendant spouse away from the marital residence. If the court modifies the order regarding the marital residence, or vacates the order, then the address protection would no longer apply, and the defendant spouse could return to the marital residence.

Evicting your spouse from your separate property.

It is theoretically possible to evict your spouse from the marital residence, if the marital residence is your separate property (not community property). This would require a separate civil proceeding and would be separate from the divorce. If you sought after this route, you would most likely need to hire a separate real estate lawyer to help with a proper eviction as fouling up a step in the process and the timing of the steps toward eviction can lead to an unsuccessful eviction.

An eviction is not an immediate result, unlike an order of protection, which would happen once the order is granted. However, the process could actually be quicker than getting temporary orders depending on the case load of the family court. The family court is required to have a temporary orders hearing within 30 days of the motion being filed. However, under the rules the court can realistically push that off to as much as 60 days (or sometimes more). Thus, an eviction, even with the 30-day notice requirement, could be just as expedient as waiting for temporary orders.

If nothing else, I have seen in one case where a pending eviction was a factor that the court considered when entering temporary orders and subsequently awarded exclusive use to the spouse that owned the residence as separate property (and was trying to evict the non-owner spouse).

Wrapping it all up

Based on my conversations with people, there seems to be a misconception that one of the spouses has to move out of the house once a divorce is filed. To the contrary, nothing in the initial divorce filing requires either spouse to move out. That being said, there are a variety of methods of getting your spouse to leave the marital residence legally, which are filing for temporary orders (and getting exclusive use of the house), getting an order of protection (if warranted), and eviction (if the house is your separate property). As you can see though, none of the options are immediate AND pretty.

Although an order of protection can provide immediate exclusive use of the house, it is by far the most contentious and ugliest of the three proceedings because of the more personal (and potentially criminal) implications.However, for most people, an order of protection is more about protecting themselves, rather than gamesmanship to get control of the house. Thus, the ugliness factor is less of a concern if you are truly trying to protect yourself from harm.

If you have any more questions about who gets the house after the divorce, or other divorce matters, email me and I can write an article or produce an episode on the podcast to answer you the best I can. Also, if you’re concerned about who stays in the house, you are likely on the cusp of filing for divorce. If so, check out my free course on how to file for divorce to get tips and easy links to great resources to help.