My name is Attorney Chad L. Simpson, and I’m an Associate Attorney for Holcomb Law. One of the common questions that we get here at the firm is whether or not one spouse can evict or kick out the other spouse during a divorce. The general answer is no. We will get individuals that come into our office and they say, “The house is in my name. Only I’ve been paying the marital mortgage for decades. Therefore, since it’s my house, I should be able to evict or kick out the other spouse.” The answer is that a spouse is entitled to stay in a marital residence because she’s a spouse, not a tenant, and then just because you have a house in your name and just because you paid the mortgage, doesn’t make it your house.
In the eyes of Virginia property is classified as either separate property or marital property. And even if the house is titled in your name only, it would still be considered a marital asset. So therefore, you would not be able to kick out the other spouse, because she is a spouse and not a tenant. You may ask yourself then, “What options do I have?” Sometimes, an individual is able to get a protective order against the other spouse. If you were able to get a protective order because of apprehension or fear of bodily injury, then sometimes the protective order does grant one party exclusive use or possession of the marital residence. If you were able to get a protective order that allowed you to get exclusive use and possession of the marital residence, then you would be able to live in the residence without the other spouse.
You can also petition the court to request that you get exclusive use and possession of the marital residence, and this is commonly done in pendente lite hearings before the judge. However, generally, judges do not kick out one spouse over the other spouse unless there’s good cause. So what would be good cause? They would have to be pretty extrinsic evidence of bodily injury or fear of death. Under those circumstances, if it was proven, the judge may grant exclusive use and possession of the residence over one spouse over the other.
But to give you a general answer, generally spouses cannot evict or kick out the other spouse, because they are not tenants, but spouses, and they have a right to be in the marital residence. If you have any other questions about a divorce, or if you think you have specific facts that may allow you to evict or kick out the other spouse, please feel free to stop by Holcomb Law.