# Who gets pushed out of the house?



## Lila (May 30, 2014)

*Prefacing note: This question does not pertain to my marriage.*

Question for the legal eagles or those that have gone through something like this......

*Situation:* Married couple live in a home purchased/owned by one partner prior to marriage (< 5 years). Homeowner asks for separation and wants SO out of the house. Is that legal? Can the homeowner push the STBX out? Is there anything the homeowner do to speed up the process?

Just curious. Similar situation happening to acquaintances of mine.


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## arbitrator (Feb 13, 2012)

Lila said:


> *Prefacing note: This question does not pertain to my marriage.*
> 
> Question for the legal eagles or those that have gone through something like this......
> 
> ...


*RSXW, the millionairess, informed yours truly way back in February, 2011, that we needed a “trial separation” commensurate with my younger sons getting out of high school for the year! I just assumed that she was having a mild meltdown and would soon change her mind. It didn’t happen!

In May, when classes ended, the boys and I had been ferried off to another nearby town to live on our own, while unbeknownst to me, she was busy bumping cabooses with old BF’s!

From a legal perspective, I think that as sole owner of the mansion, that she was totally within her purview because my name was not on any of the ownership papers!

My biggest mistake was not having sought out legal remedies at the time because I was just a loveable, acquiescing “nice guy!”

Funny thing in the aftermath, however, is that both sons were subsequently invited back into the home to live at various intervals during their college years while she has remained antagonistic toward me after having uncovered the truth of the matter of her rampant infidelity!

To this very day, both of my sons remain ultra-friendly with her!*


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## brooklynAnn (Jun 29, 2015)

I know in NY, if he is not on the deed mortage...not martial property..then, is.month to month tentantship takes over and is required a minimum of 30 days noticed to move. Should be served to legalized it.


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## Andy1001 (Jun 29, 2016)

Lila said:


> *Prefacing note: This question does not pertain to my marriage.*
> 
> Question for the legal eagles or those that have gone through something like this......
> 
> ...


More information needed.Is there any children involved,was there a mortgage on the property that both partners were contributing to.Was there any improvements or extensions built during the years they were together.Where is the property.


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## Satya (Jun 22, 2012)

I'm no expert and I think this varies state to state...

If owned by one spouse previously and the other spouse is not on the title, then yes I think it's possible to "kick" the non-owner out. It would not be considered joint marital property because it wasn't purchased together (even with just 1 name on the title, if purchased when together its considered joint property). Usually, if co-owned, you need a court order to request "kicking" a spouse out and many factors are considered by the court before granting this in one spouse's favor. 

If the non-owner contributed to house maintenance, upkeep, development, etc, I think that the owner could be held responsible to compensate the spouse for their contributions, but ownership remains with the original owner.

A LOT usually depends on child support necessities as well (if required). We'd really need to know what slate this situation applies to. There is a lot of information on the 'net, but it's pretty state specific.


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## MJJEAN (Jun 26, 2015)

In our state, MI, the home would remain the property of the original owner, so the house wouldn't be marital property subject to asset division. However, it would still be considered the "marital home" and to remove the other spouse against their will would require a court order.


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## Lila (May 30, 2014)

Thank you for the responses @arbitrator, @brooklynAnn, @Andy1001, and @Satya. ETA: @MJJEAN

This situation came to my attention last night after talking with my sister. Her best friend growing up is the wife in the OP. Her and her husband have what can only be described as a tumultuous relationship and it's been like that she became pregnant. Suffice it to say, no one can claim the upper hand. 

But to provide further clarification:

*They live in Florida and have an almost 3 year old child together.

*I don't know much more other than the house is mortgage-free; she inherited it from her dad while she was in college. 

*I'm sure he contributed to the general maintenance and upkeep to the property but there haven't been any additions or big remodel projects that I can tell.

*And money is not an issue (she's a successful entrepreneur); she's willing to pay him to move out. She just wants him out sooner rather than later.


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## MJJEAN (Jun 26, 2015)

I'd say speak to a lawyer. Find out what she can legally do and how to go about it. Then she can tell her husband that he can move out voluntarily with a little financial help from her or she'll go the legal route and have him removed involuntarily with the help of a court order and the sheriffs office, if necessary. Hopefully, he'll be reasonable.


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## arbitrator (Feb 13, 2012)

Lila said:


> Thank you for the responses @arbitrator, @brooklynAnn, @Andy1001, and @Satya. ETA: @MJJEAN
> 
> This situation came to my attention last night after talking with my sister. Her best friend growing up is the wife in the OP. Her and her husband have what can only be described as a tumultuous relationship and it's been like that she became pregnant. Suffice it to say, no one can claim the upper hand.
> 
> ...


*The only real thing that I can possibly see into all of this is that the court would be sympathetic to the physical maintenance issue, ordering her to either reimburse or settle up with him for any and all maintenance chores that he duly and individually performed!*


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## Lila (May 30, 2014)

MJJEAN said:


> I'd say speak to a lawyer. Find out what she can legally do and how to go about it. Then she can tell her husband that he can move out voluntarily with a little financial help from her or she'll go the legal route and have him removed involuntarily with the help of a court order and the sheriffs office, if necessary. *Hopefully, he'll be reasonable*.


 She has an appointment with a divorce attorney scheduled for next week. 

I think the problem is that he's not being reasonable right now. He's digging in his heels. 

Sent from my SM-G950U using Tapatalk


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## SunCMars (Feb 29, 2016)

Prefacing note: This question does not pertain to my marriage.

I read this.
I smiled.

The skimmers, late comers.
They will still give their opinions.

And their condolences, to you.
Ad nauseam, until they turn blue.

Methinks.
...............................................................................................................................
Evicting a Spouse From The Family Home During Divorce
by FreeAdvice staff

During a divorce, something that is generally considered a co-owned marital asset such as a home is still considered to be the property of both spouses, regardless of who pays for what, or whose name is on what legal documents. Therefore, it probably isn't legally possible for a person to evict his or her spouse from the home during divorce proceedings in any state. In some states, however, it may be possible to evict a spouse during a divorce if there are allegations of abuse or other special circumstances apply. 

Eviction May Be Possible if The Home Is Separate Property

While many courts generally prohibit one spouse from evicting the other, such an eviction may be possible when the home is clearly owned by one person and not the other. However, this is more than likely not the case since the home is almost always automatically considered a marital asset. In order to show that the home belongs to one spouse, the spouse wishing to retain the home and evict the other will need to present evidence that the home is clearly separate property.

In a community property state, the home would only be considered separate property if it were acquired by the spouse prior to the marriage or as a gift or inheritance. Otherwise, all other income and assets gained during the marriage is assumed to be community property owned by both spouses.

In a common law property state, it might be even more difficult to show that the house is separate property, and it might matter less because showing the property is separate may not be enough to evict the other spouse. Common law property states use equitable distribution to divide property, which can sometimes include distributing one spouse's separate property to the other spouse to ensure a fair division based on needs of both the spouses and other factors.


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## SunCMars (Feb 29, 2016)

@Lila,

Does your husband or your' friends read this blog, TAM?

If so, then I can see your' preface. Your' fear, their concern.
I can see it clear!


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## Lila (May 30, 2014)

SunCMars said:


> @Lila,
> 
> Does your husband or your' friends read this blog, TAM?
> 
> ...


 @SunCMars thanks for including the article on marital property and eviction. Looks like my sister's friend is going to have to put up with her husband for a while. I hope her lawyer can offer her some hope.

And no. My husband has an account here but doesn't read it. I could have friends IRL posting on TAM but I wouldn't know.

The reason for the preface is that posting on TAM is like playing telephone. What starts out as a non fictional post has the potential to turn into a salacious, drama filled work of fiction. I asked a simple question that I don't want turned into "lila is dumping her husband and looking to 'steal' the house....all without his knowledge ". 

Sent from my SM-G900V using Tapatalk


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## SunCMars (Feb 29, 2016)

Lila said:


> @SunCMars thanks for including the article on marital property and eviction. Looks like my sister's friend is going to have to put up with her husband for a while. I hope her lawyer can offer her some hope.
> 
> And no. My husband has an account here but doesn't read it. I could have friends IRL posting on TAM but I wouldn't know.
> 
> ...


Your' welcome!

Alas,
On fiction, on drama.
My Noam de Plume.

Take away my pen, my typing fingers, I become...
Common, unnoticed, forgotten.

And, Oh..
Don't submit a poll on this notion.
I would lose, hands down.
Hands in acid, then in soil.

Silenced, but not forgotten.
Too late, SCM is now encased in silicon. 
Silicon chips, Worldwide.

Just Sayin'
Just Prayin'


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## uhtred (Jun 22, 2016)

I think this is one for an attorney. There could be all sorts of details that change the rules.


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## Ynot (Aug 26, 2014)

I think it would depend on the state the residence is located in. Dower property rights automatically confer in some states. So in Ohio, regardless of the fact that that one may have owned the home prior to the marriage, once a marriage occurs, dower property rights confer so the new spouse assumes an ownership interest in the real estate. That is one reason why a person is noted as being "married" or "unmarried" on any legal documents related to real estate (deed, mortgage, etc). The spouse is required to sign when married, even if just to waive their dower property rights in the case of default.


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## C3156 (Jun 13, 2012)

You can't just tell someone to get the f* out of your house because you own it, especially if it has been his residence for a while.

As mentioned previously, the only way to force someone out is via a court order. Even though they are separating, she still needs to follow legal guidelines, basically for eviction of a tenant. She has to give notice and time for the other party to find another residence. I'm sure a less than scrupulous lawyer will advise her to file for a TRO "for her safety" and that will also get him out of the house. Really depends on how amiable she wants to get with this process. She will have to deal with the father of her child for years to come.


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## Lila (May 30, 2014)

C3156 said:


> You can't just tell someone to get the f* out of your house because you own it, especially if it has been his residence for a while.
> 
> As mentioned previously, the only way to force someone out is via a court order. Even though they are separating, she still needs to follow legal guidelines, basically for eviction of a tenant. She has to give notice and time for the other party to find another residence. I'm sure a less than scrupulous lawyer will advise her to file for a TRO "for her safety" and that will also get him out of the house. Really depends on how amiable she wants to get with this process. She will have to deal with the father of her child for years to come.


Yes, I think she's going to have to go through the formal process of having him evicted. My mother owns rental properties in Florida and has had to evict people in the past. IIRC, she had to give the tenant 30 days notice and then it took another 30 after that to get the sheriff to evict. It was a tedious process.

My advice to her was that while she waited on eviction (or whatever else had to happen) she could move her mother, groundmother/grandfather, sisters, and all of their kids into the house temporarily. Nothing like having a house full of your in laws to serve as encouragement to get out.


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## EleGirl (Dec 3, 2011)

This link might help.

https://www.myfloridalaw.com/asset-debts/keeping-inherited-assets-during-a-divorce/


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## Satya (Jun 22, 2012)

@Lila, did they have a prenup?


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## Lila (May 30, 2014)

Satya said:


> @Lila, did they have a prenup?[/quote @Satya, that I don't know. Would a pre nup include eviction language? She's not concerned with giving him money to cover whatever he's legally entitled to but she wants him out ASAP. She's mad and just wants him out of her sight.
> 
> Sent from my SM-G950U using Tapatalk


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## soccermom2three (Jan 4, 2013)

Here in California, if she never signed a Quitclaim Deed, the home would be considered community property, so she has every right to stay in the house as he does. He could not evict her.

Even if they weren't getting a divorce but they were selling the home, the title company would require her to either sign the Grant Deed to the Buyer or sign a Quitclaim Deed to be recorded at the close of escrow. Either way she has to relinquish her interest in the property.


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## phillybeffandswiss (Jan 20, 2013)

Please let us know what the lawyer states. You mentioned the house is an inheritance so, I'm curious what that will do. I know he will be given time to leave, but inheritance is always tricky in divorces.


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## Wolf1974 (Feb 19, 2014)

As a cop standing is something I deal with a lot. The short answer, least here in Colorado, is no one partner can force another out. Doesn’t matter who owns it if they both claim that at their legal residence. Ultimately if neither partner is willing to leave the divorce process will yield a verdict and often times without a prenup the house will be ordered to be sold and the proceeds divided among the 2 people. 

In no marriage arrangements you still can’t force the BF or GF out if they have standing. You would have to go through a legal eviction process to have them removed but hey least you get to keep your house. 

Standing is a bit weird here not sure how it is compared to the other areas of the country .


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## Affaircare (Jan 11, 2010)

@Lila, 

Florida is an Equitable Distribution state. So unlike a community property state which just takes everything and divides it down the middle no matter who owns it, an equitable distribution state says they divide it "fairly." Thus some property, like inheritances, can be separate property, and marital property is all the stuff and money you earned during the marriage. He gets his separate propert, she gets her separate property, and they take the marital property and spit it 50/50. That's SUPPPOSED to be how it works.

Since the home is an inheritance, in her name only, with no mortgage, she will definitely have a claim to say it is separate property...BUT (and this is a big but) it also sounds like she commingled it while they were married. That is to say, if a separate property is remodeled using joint money, or maintained using joint money, if they used it for vacation or lived in it--then usually they consider some portion of it to be marital property. At minimum he'd be due his half of what marital money was used to maintain the place. Thus she might be due 75% and he'd be due 25% but it sounds to me like he'd have a claim anyway. 

Now Florida does not consider abandonment, so either one of them can leave without raising the issue of abandonment. If one or the other were to leave, it might affect "primary care giver" of the children, which might affact child support. However, even if his name is not on the title nor on the deed nor on a mortgage, he has been living there and thus it would be considered his residence at least. I don't see any legal right for her to kick him out. 

Thus I would recommend one of two things. Either 1) reach some civil marital agreement about who is going to live where and write it down so that both party's interests are protected--use lawyers to write this and file it. Or 2) go to court and ask the judge for a temporary exclusive rights/use of home order. Essentially this is the judge saying "Okay until we can go to trial, HE will live here, SHE will live there, and they cannot bother each other." Then if he does try to come bother her, she has the law to back her up. 

I would NOT recommend trying to evict a spouse. He's not a tenant (unless they have some sort of written lease agreement) and thus it would essentially make her look bad.


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## Satya (Jun 22, 2012)

phillybeffandswiss said:


> Please let us know what the lawyer states. You mentioned the house is an inheritance so, I'm curious what that will do. I know he will be given time to leave, but inheritance is always tricky in divorces.


This is why I asked about the prenup. It usually protects inheritances. I was wondering if that would make any difference in procedure to have him vacate the abode.


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## Lila (May 30, 2014)

Thank you for all the feedback @Satya, @Wolf1974, @Affaircare, and @soccermom2three. I'll pass it on to her.
@phillybeffandswiss I'll post the outcome as soon as I hear something. 

Sent from my SM-G950U using Tapatalk


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## phillybeffandswiss (Jan 20, 2013)

Satya said:


> This is why I asked about the prenup. It usually protects inheritances.


Yes, I know. Still, states vary on what to do with inheritance during or before a marriage. Inheritance is its own bear and in some cases property can be safe even if you are married with no prenup. 




> I was wondering if that would make any difference in procedure to have him vacate the abode.


According to some websites yes. Either way, the court will be involved inheritance or not. The way I understand it is, if she never added him to the deed it is her home. If he helped with upkeep and renovations she will have to give him a portion of the cost or if the value went up.

https://www.legalmatch.com/law-library/article/evicting-a-spouse-during-separation.html


> Community Property Vs. Common Law
> 
> Spousal eviction depends on whether a state is a community property or common law state.
> 
> ...


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## golfer6760 (Oct 8, 2017)

Affaircare said:


> @Lila,
> 
> Florida is an Equitable Distribution state. So unlike a community property state which just takes everything and divides it down the middle no matter who owns it, an equitable distribution state says they divide it "fairly." Thus some property, like inheritances, can be separate property, and marital property is all the stuff and money you earned during the marriage. He gets his separate propert, she gets her separate property, and they take the marital property and spit it 50/50. That's SUPPPOSED to be how it works.
> 
> ...


Above: 100% correct in the state of FL. ONLY if the house was not put in both names during the marriage. If not, then in the State of FL the property is still yours. The same will go for the other partners property. This law was made years ago to eliminate the "Gold-diggers" and to protect the elderly from losing all their assets. 

Guaranteed you should seek council.


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## EleGirl (Dec 3, 2011)

There are two issues.

Who can stay in the home. 

Affaircare and some others covered the ownership issue pretty well. Except that in an equitable distribution state, a just can decide to give one person more because it's "equitable". For example if one spouse is disabled and unable to earn an income, they might give that spouse more to include dipping in to the other's inheritance. This is why talking to a lawyer is so important. The lawyer will know the particulars of the state law and what the judge(s) has done in the past in similar cases.


Who owns the home.

The home is her husbands residence. She would have to go through the proper procedures to evict him. in the case of a divorce, that usually means that the judge in that case has to issue an eviction notice. And often times a judge will not do that until the divorce is settled.


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## Lila (May 30, 2014)

I heard back from my sister this morning. She doesn't know all of the legal details but it looks like her friend has filed for divorce. She included a special request that he vacate the premises as part of the petition. According to her lawyer, she can't legally evict him, at least not yet, but she can ask. Legally, he can stay there up until the divorce is final. Her options are a temporary exclusive use request or worse case scenario, to sell the property so that everyone has to move out. She's going to wait until he responds to make the final decision. 

The problem is that _he_ does not want to divorce and is doing everything in his power to avoid it. She's done. According to my sister, her friend has offered him money as incentive to move out. He won't budge. I have to wonder if he's doing the Divorce Busting thing. What a mess!


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## badsanta (Oct 13, 2014)

Lila said:


> *Situation:* Married couple live in a home purchased/owned by one partner prior to marriage (< 5 years). Homeowner asks for separation and wants SO out of the house. Is that legal? Can the homeowner push the STBX out? Is there anything the homeowner do to speed up the process?
> 
> Just curious. Similar situation happening to acquaintances of mine.


 @Lila

I have witnessed a similar situation in which the home was actually owned by a business belonging to just one of the spouse's parents. Upon legally separating the spouse that was not named on the deed remained in the house until the divorce was finalized and insisted ownership. The argument was that the spouse remaining in the home had spent all his/her income for many years maintaining and improving the home and therefor he/she had a right to claim ownership in the property via the marriage. 

Divorce proceedings had to take into consideration that one spouse (not from the owning family business on the deed) indeed had a financial stake in the property and that this aspect of the home would have to be liquidated in order to settle the divorce. In this case the owning family in order to keep possession of the house paid well over six figures to get the other person out of the home and help settle the divorce. 

Don't know if that helps, but it makes for a case study to think about. 

Regards, 
Badsanta


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