Table of contents:
- Grounds for spousal eviction in Texas
- Reasons you can’t evict a spouse in Texas
- Evicting a spouse in Texas: Understanding the legal process
- Property rights and spousal eviction in Texas
- Child custody and spousal eviction
- Why legal representation is so important during spousal evictions
Your marriage is on the rocks, you can’t stand being in the same room with your spouse, and you want to get rid of them—can a spouse kick you out of the house in Texas? OR you’re in a situation where your spouse locked you out of the house. What can and should you do? Before you change the locks on your marital home or try to break in, it’s important to consider the legal options and implications of spousal eviction in Texas.
Grounds for spousal eviction in Texas
In general, both spouses have legal rights to access the marital home unless a protective order is obtained, usually with an affidavit providing evidence of family violence. If you live with a spouse where domestic violence or credible threats of violence toward you and/or your child have occurred, you may have grounds to evict your spouse. To legally remove a spouse, you would need to request a kick-out order in conjunction with the protective order application (or with an emergency ex parte protective order, when immediate protection is needed). To exclude an abusive spouse from the family home, the affidavit must show:
1). Proof of residence:
The spouse requesting eviction currently lives in or has resided in the family residence within the last 30 days; and
2). Acts of family violence:
The spouse being kicked out of the home has committed family violence against a family member in the household within 30 days of the application being filed; and
3). Imminent threat:
A clear and present danger exists that the person being excluded from the residence is likely to commit family violence again.
Spousal eviction applies to owned and leased residences
And this includes residences owned by a spouse facing eviction. Texas Family Code Sec. 85.021 stipulates that a protective order may grant exclusive possession of the family residence to one party, and depending on the circumstances, order the other spouse to vacate the premises if the residence is:
- Jointly owned or leased by the two parties; or
- Owned or leased by the party retaining possession; or
- Owned or leased by the party denied possession but who is obligated to provide support to the other party or the child of the party who retains possession.
Keep in mind, if you lock your spouse out of the house and can’t show you have grounds to do so, you will be breaking the law. Even if the home is exclusively in your name, you could face legal consequences, including fines and jail time.
Reasons you can’t evict a spouse in Texas
You can’t lock your spouse out of the house without a legally valid reason. Before we explain how to kick your husband or wife out of the house legally, let’s first look at circumstances where locking a spouse out of the house can have legal ramifications.
The spouses just don’t get along anymore.
When someone is fed up, the fights never stop and they want their spouse out, they may wonder: Can I lock my husband out of the house (or wife)? The answer is “no, not unless you obtain a protective order to do so first.
Assertions that a spouse is unstable.
Clients tell me all the time, “Well, it’s going to be uncomfortable having him/her in the house. He/she’s going to get mad. He/she’s crazy. I don’t know what he/she will do.” Sorry, that doesn’t mean you can lock your spouse out of the house and get away with it.
Fear that a spouse might commit a crime.
You can’t lock somebody out because you believe they may be a criminal. They have to actually commit a crime. Telling the court you’re afraid for your safety because someone has yelled at you in the past, and therefore, you think they’re going to abuse you, typically won’t be viewed as grounds for eviction in the Texas courts.
You must have had a pattern or history of violence, or threats of such, to convince a court that future violence is imminent. Every situation is different. If you genuinely fear for your safety or your child’s well being, speak with an experienced family law attorney about your options.
Evicting a spouse in Texas: Understanding the legal process
If you’re wondering how to kick your husband out of the house legally or how to kick your wife out legally, the best first step is to seek legal counsel. In order to evict a spouse, you will need to get a court order, and an experienced family law attorney can explain what steps you will need to take and how to prove your case.
The legal process will vary depending on the urgency of the case and will require that you get some form of protective order. The duration of protective orders also differs depending on the circumstances and type of protective order sought. The two most common orders include:
Option 1: Standard protective order
This option may be used as a standalone legal action or in conjunction with the filing of an original petition for divorce or conservatorship in Texas. Once approved, protective orders can be in effect for up to two years (longer in special cases).
As previously noted, evidence of family violence must be provided in the form of a sworn affidavit when applying for a protective order. To qualify for a protective order:
- Applicant must prove they have lived in the family residence in the past 30 days.
- The application must include a request for a kick out order when filed.
- The other party (respondent) must be notified that a request for a protective order has been made and a hearing scheduled.
- The applicant must appear in person at a court hearing, where both parties have the opportunity to plead their case. (The respondent does not need to appear in order for the court to render a decision.)
- The court must find based on the affidavit, evidence and/or testimony provided that the other party committed an act of family violence against a member of their household within 30 days of the application for the protective order being filed.
Option 2: Temporary ex parte protective order
If a clear and present danger of family violence exists and immediate relief is needed, a spouse can apply for an emergency protective order, otherwise known as a temporary ex parte protective order. The term “ex parte” means that the judge will rule on the order without the other party being notified or being present at the hearing.
Temporary ex parte protective orders are valid for a specific period of time stated in the orders, usually 20 days. Should the threat of family violence persist, the applicant can request (or the court can motion) that the orders be extended in increments of 20 days. To secure a temporary ex parte protective order:
- Applicant must prove they have lived in the family residence in the past 30 days.
- The application must include a sworn affidavit that provides evidence and circumstances that support allegations of family violence.
- The application must include a request for a kick out order when filed.
- The party requesting the temporary ex parte protection order must appear at a hearing in person to plead their case to the judge.
- The court must find based on the affidavit, evidence and/or testimony provided that the other party committed an act of family violence against a member of their household within 30 days of the application for the protective order being filed and that a clear and present danger exists that family violence will occur again.
- If the ex parte protective order is approved, the applicant can then request a hearing to request a standard protective order be put in place for a longer period of time.
These are just some of the key aspects and requirements necessary for evicting a spouse when family violence is alleged. Keep in mind, the other party does have a right to due process and can file an answer or a Motion to Vacate and appear in Court to refute the allegations against them and request that a protective order be overturned.
Property rights and spousal eviction in Texas
One of the most common questions clients ask us is: Can you evict your spouse if you own the house? As a community property state, Texas considers all property community property until it is proven to be separate property during a Texas divorce.
That means, even if you purchased your home prior to marriage and your spouse’s name isn’t even on the deed or mortgage, you cannot kick someone out or change the locks until you go through the divorce process, and, as noted above, you can’t evict a spouse without a court order.
<H3> The court’s considerations for property division during divorce
Who gets to keep the house or proceeds from the sale of the house—along with other assets acquired during marriage—will be determined by the court when the judge fairly and justly divides the community estate between two spouses.
Various factors play into the division of a couple’s marital property, so who ends up living in the house (and it may be neither of spouse) will depend on the specific circumstances of the case. The court will consider:
- How long the couple has been married.
- The financial circumstances, financial obligations and earning capacity of both spouses.
- The financial contributions both spouses have made to the marital estate during marriage.
- The health and age of both spouses.
- Whether the couple has any minor children and what the child custody arrangements looks like.
- Whether the couple established any previous agreements regarding division of property.
- Who has the exclusive right to designate the primary residence of the children, if there are children of the marriage.
How courts deal with residences purchased by one spouse prior to marriage
While it’s true that you can’t evict a spouse simply because a divorce is in progress, that’s not to say a spouse has no recourse if they did in fact own their home prior to marriage. When determining who has a right to stay in the family home during a divorce, the court will take into careful consideration who owned the home prior to the marriage, along with other factors listed above, especially child custody.
When it comes to property rights and eviction, Texas law does provide some protections of property for parties who are subject to a kick-out order. According to Texas Family Code Sec. 85.023, “A protective order or an agreement approved by the court under this subtitle (Findings and Orders) does not affect the title to real property.”
Child custody and spousal eviction
Since most spousal evictions occur in conjunction with allegations of family violence, the courts will proactively address family safety concerns while a protective order is in place. If you are thinking about evicting a spouse or concerned about your parental rights following an eviction, consider the following:
Evicted spouses may lose custody, possession and/or access to their children
If a protective order has been put in place and a spouse has been evicted due to family violence, the court may also restrict possession and access to children during that time. This is especially true if there is a clear and present danger that the evicted spouse will commit domestic abuse again.
Spouses who are evicted still have parental rights
While the Texas courts may restrict a parent’s access due to family violence, that doesn’t mean the parent loses custody permanently as the subject of a protective order. For one, they have a right to appeal the order. Secondly, they do have standing to petition the court to reinstate access or modify custody arrangements, provided certain conditions are met.
Evicted spouses are still responsible for paying child support while access is restricted
Losing custody or access to a child due to spousal eviction doesn’t release the evicted parent from child support obligations. Parents who don’t pay required child support may be subject to fines, jail time and other penalties, depending on the circumstances.
Co-parenting children under any circumstances can be challenging but doing so following a spousal eviction can be particularly hard. Parents need to take proactive steps to provide a stable home environment and ensure their child’s well being when a parent is excluded from the family home.
Why legal representation is so important during spousal evictions
Evicting a spouse can be complicated, and it’s important to follow proper legal protocol when trying to remove a spouse from the marital home. That’s why it’s critical to speak with an experienced family law attorney about your legal options. An attorney can provide guidance regarding:
- Under what circumstances can your wife or can your husband kick you out of the house.
- Information you need to include in the affidavit to prove family violence has occurred.
- How protective orders work and how to enforce them.
- Procedures for dealing with landlords during an eviction case.
- What to do if a spouse refuses to vacate the residence after eviction.
- The best legal strategy to evict a spouse or fight a spousal eviction.
- The fastest way to get relief if you and your children are in imminent danger.
Most important, an attorney experienced with spousal eviction cases can represent you in court and ensure paperwork pertaining to your case is properly filled out and filed on time.
Contact us to discuss your legal options for spousal eviction
If you have questions about a spouse kicking you out of the house or a spouse locking you out of the house and you don’t know what to do, it’s critical to get legal advice from a family law attorney who practices law in the state where you reside. The rules regarding spousal eviction do vary from state to state.
Our Fort Worth family law firm can answer questions for Texas residents who want to learn more about their options for divorce, child custody and temporary ex parte orders. We can also take a deeper dive into your community estate, discuss protection of assets and explain what options you have for staying in your marital residence during and after your divorce.
If you live in Texas and would like to speak with a family law attorney at our law firm, contact us. To schedule your confidential case review, please call our Fort Worth law office at (817) 336-4444 or connect with us online.
Photo Source: Canva.com
FAQs: Can you evict your spouse in Texas?
Can my husband kick me out of the house he owns?
Or, conversely, “Can I kick my husband out if I own the house?” In Texas, kick-out orders are only allowed when there are accusations of family violence. Usually, one spouse can’t make the other leave the home unless a protective order application asks for the other spouse to be removed.
My spouse locked me out of the house, what can I do?
If you find yourself in this situation, you’ll need to know what to do if your spouse locks you out of the house. The first thing to do is call the police, explain the situation and ask them to accompany you to the property. It’s also a good idea to bring another witness with you and have your phone ready to record the interaction.
If your spouse won’t open the door, advise them you will either break a window or call a locksmith to gain entry. You don’t necessarily have to break a window or break the door in, but you can. It’s your home.
It’s important to record the interaction because you don’t want to enable your spouse to make an allegation of family violence against you because YOU smashed a window and acted crazy. That’s why it’s essential to have your phone video rolling in the presence of a witness and police.
Can you evict a common law spouse in Texas?
If you can prove you have a legal informal marriage (the term used for common law marriage in Texas), you would need to follow the same process to evict your spouse as someone would in a traditional marriage. Typically, this is fact intensive and requires a heavy showing of holding yourself out as married to the public, usually through filing taxes together or consistently referring to each other as husband/wife.
How do I evict my husband in Texas?
You can’t evict your spouse just because you don’t get along anymore. If, however, you fear for your safety and your spouse has committed acts of family violence, you can ask the court for a protective order that includes a kick-out order with it. You will need to provide an affidavit with proof the family violence has occurred, appear in court and meet other requirements (show you resided in the home in the past 30 days, show family violence occurred within 30 days of applying for the protective order, among others).
Can I kick my husband out of the house if I fear for my safety?
If you have an abusive spouse and are afraid that he or she will harm you or your children, you can ask the court to grant you an emergency protective order—known as a temporary ex parte protective order—and get a kick out order that requires your spouse to vacate the family residence. A family law attorney can explain next steps.
Can a husband evict his wife for cheating in Texas?
No. Texas law prohibits a spouse from evicting or locking out the other spouse without a court order, even in cases of infidelity. A court order can be obtained during the temporary orders phase of a divorce, where it may be established who has the exclusive right to reside in the family home during divorce proceedings.
However, restraining orders may prohibit a spouse from excluding the other spouse from the home, depending on the circumstances. Usually a Temporary Orders hearing is necessary to determine whether one party should have exclusive use of the house during a divorce proceeding.
What happens if my spouse refuses to leave after being evicted?
If your spouse won’t leave your residence after being ordered to vacate, you can contact law enforcement and ask them to remove your spouse. However, we recommend speaking with your family law attorney first to ensure you’re adhering to the proper protocol for eviction in the jurisdiction where you live and as it pertains to your specific case. Ultimately, law enforcement (police, sheriff or constable) should be able to come to your home and physically remove your spouse if they refuse to leave voluntarily.
Can my wife kick me out of the house we rent together in Texas?
Not if both of your names are on the lease. To have you legally removed from the home, your spouse would need to get a court order, which generally requires proof that family violence has or is likely to occur. If your name is not on the lease, your spouse would need to take steps to have you legally evicted from the marital home.
Can my landlord evict my husband?
Not without cause. If your husband (or wife) has done something that gives the landlord grounds for eviction (not paying the rent or damaging property for example), the landlord could pursue a legal action of eviction against both of you. If there is no cause for eviction and your husband (or wife) is not on the lease, the landlord may require that you pay more rent for an additional tenant until your lease expires, at which point you could move out and establish new living arrangements on your own.
