dwelling exclusion

Dwelling Exclusion Orders by Cassandra Hearn

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When you have made the decision to divorce, it is not unusual to start immediately making important plans for how you are going to move forward with the next step of your life.  One of the most pressing of these issues tends to be where you will live going forward.  At this stage of your case, you may be wondering if you can kick your spouse out of the house or apartment you share.  In some limited circumstances, this is a possibility by using what is called a Dwelling Exclusion Order.

A Dwelling Exclusion Order is a tool to be used in divorces to secure exclusive possession of the marital residence where there has been violence or the threat of violence between the spouses or towards the children.  In order to secure one of these orders, you will need to allege and prove three things:

1.      That you have the right to possess the residence, such the dwelling is the one you have shared with your spouse;

2.      That your spouse has assaulted or threatened to assaulted you or children in your custody, even if those children are children from another relationship; and

3.      That your spouse will cause emotional and physical harm to you or children in your custody.

In requesting an emergency order under Family Code 6321, you will still need to allege and prove specifics about when and where the assaults or threats took place.  If after reading your allegations in your request for an emergency order, the court agrees with your request, an emergency order will be issued.  Your spouse can request a hearing where you will be required to prove your allegations in order to have the dwelling exclusion order continued. 

If is also possible to request a dwelling exclusion order on a non-emergency basis under Family Code 6340.  Under a non-emergency order using similar considerations as under 6321.  The court will consider the type of emotional or physical harm that may occur in the future to either you or your children if the court does not grant the order.  With a non-emergency request, the court will hear the evidence from you and your spouse before granting order denying your request.

We have experience in providing assistance at all stages of divorce.  If you have questions about a dwelling exclusion order or any other family law issues, call us today for a consultation