The prospect of divorce can cause dramatic reactions from your spouse. Even if there has never been any domestic violence or anything approaching it, it is not unheard of for one spouse to come home one day to find that he or she has been locked out of the marital house or apartment by the other spouse.
Perhaps it’s anger over a real or imagined episode of cheating, perhaps it’s a worry that you’re going to take property out of the house (or a plan for the spouse locking you out to keep you away from property while or he she transfers it), perhaps it is a desire to keep you away from your kids and even turn them against you, or perhaps it’s even a new romantic partner who has taken up residence in your place and doesn’t want you around.
In any case, your spouse cannot unilaterally (meaning without a court order) prevent you from occupying your home when you co-own the property, are both on the lease, or otherwise have an enforceable agreement for you to live there. While there are appropriate measures the members of a divorcing couple can take to maintain their own private residences, you should take legal action if you have been wrongly locked out of your house or apartment during a divorce.
You Have a Right to Live in Your Own Home During a California Divorce
The fact that you or your spouse (or both) is pursuing a divorce in California does not change anything about your right to live on your property, whether it is owned or leased, if you are a co-owner or co-lessee of the property. Even if you are not a co-owner or co-lessee, you still may have rights to continue living on the property, at least temporarily, based on an oral or implied agreement between you and your spouse (e.g. you agreed to share rent or mortgage costs).
Speak to a family law attorney if you are being denied access to your own property. Your attorney can provide you with counsel on how to deal with a spouse who is not allowing you entry to your property, including filing actions with the court or contacting law enforcement.
Furthermore, your attorney can help you take steps to protect your property inside the home as well as maintain your relationship with your children. In addition, your attorney can help you prepare a legally binding agreement with your spouse regarding living in the property and/or obtain a restraining order to prevent your spouse from denying you access and/or destroying your property.
Obtaining or Responding to a Request for a Protective/Restraining Order
Ideally, you will not need to obtain an emergency protective or restraining order in your California divorce to continue living in your home, but it may be necessary in some situations. A temporary restraining order can be obtained relatively quickly without input from the other side. You may even be able to restrain the spouse who locked you out from being on the shared property.
That said, the other spouse may indeed attempt to obtain a restraining order against you to prevent you from coming onto the property or to have contact with him or her and/or your children. A temporary restraining order can only last a maximum of 15 days, and, at that point, the requesting spouse must ask the court to provide a permanent restraining order. You will be permitted to attend this hearing and have your attorney present arguments why the restraining order should not be extended.
If you are seeking or responding to a restraining order relating to your home or any other issue, contact a California family law attorney to determine your options and next steps.
Legal Guidance in Your California Divorce Matter
To schedule a consultation regarding your situation and any questions you have about divorce and other family law matters in California, contact one of the family law attorneys at The Law Offices of Omar Gastelum and Associates, PLC today.