Divorce can be a highly emotional and complex process, especially when disputes arise over who gets to remain in the family home. When living together becomes untenable, California courts can issue Exclusive Use and Possession Orders, commonly known as “kickout orders.” These orders give one spouse the exclusive right to stay in the marital residence. The other spouse is required to vacate. Understanding how these orders work and the criteria for obtaining them is crucial for anyone involved in a contentious divorce.
What Are Exclusive Use and Possession Orders?
Exclusive Use and Possession Orders are legal mandates that give one spouse the exclusive right to reside in the marital home during divorce proceedings. They are often referred to as “kickout orders”. These orders are typically issued in situations where continued cohabitation would be harmful or impractical. Their primary purpose is to ensure a stable living environment. This is crucial in cases of domestic violence, emotional abuse, or for children’s best interests.
Definition and Purpose
These orders are issued when a spouse shows a legitimate need to stay in the home. They often aim to protect physical or emotional well-being. Exclusive Use and Possession Orders reduce conflict and maintain a safe environment during the divorce process. It’s important to note that these orders are usually temporary, providing immediate relief rather than a permanent property solution.
Legal Grounds for Obtaining an Exclusive Use and Possession Order
Obtaining an Exclusive Use and Possession Order requires meeting specific legal criteria. Courts do not issue “kickout orders” lightly. The requesting spouse must provide a compelling reason, such as domestic violence or significant emotional distress.
Domestic Violence and Abuse
One of the most compelling reasons for requesting an Exclusive Use and Possession Order is the presence of domestic violence or abuse. Courts prioritize the safety of the spouse and any children involved when considering these orders.
- Physical and Emotional Abuse: If one spouse has been abusive, whether physically or emotionally, the court is likely to issue a “kickout order” to protect the victim. Emotional abuse, such as harassment or threats, can also justify the issuance of an order.
- Protective Orders: In cases involving domestic violence, an Exclusive Use and Possession Order may be issued with a protective order. This ensures the abusive spouse is removed from the home.
Best Interests of the Children
When children are involved, their well-being and stability are paramount. Courts may grant Exclusive Use and Possession Orders to protect these interests.
- Stability and Continuity: Courts often issue these orders to provide stability for children, minimizing disruption by allowing them to remain in a familiar environment.
- Minimizing Trauma: If children have witnessed domestic violence or conflict, the court may grant one parent exclusive possession of the home to shield them from further trauma.
Emotional and Psychological Well-Being
The emotional and psychological well-being of the spouses can also serve as grounds for an Exclusive Use and Possession Order.
- Hostile Environment: If living together severely affects one spouse’s mental health, the court may issue a “kickout order” to provide relief from a hostile environment.
- Escalating Tensions: If cohabitation is likely to lead to further emotional harm or conflict, the court may find that exclusive possession is necessary to prevent escalation.
The Process of Obtaining an Exclusive Use and Possession Order
Securing an Exclusive Use and Possession Order involves filing a motion with the court, presenting evidence, and sometimes participating in a hearing.
Filing a Motion
The first step is filing a motion with the court, outlining the reasons for requesting exclusive use of the home, supported by evidence such as police reports, medical records, or witness statements.
- Supporting Evidence: Strong evidence is crucial to convincing the court to issue an order. Documentation like police reports and witness statements can support the request.
Emergency Orders
In situations involving immediate danger, a spouse can request an emergency order, which can be granted quickly to protect the requesting spouse and any children from harm.
- Temporary Orders: Emergency orders are typically temporary, providing immediate protection until a full hearing can be held.
Court Hearing
In most cases, the court will schedule a hearing to evaluate the request. Both spouses present their arguments and evidence, and the judge makes a decision based on factors like safety and the presence of children.
Issuance of the Order
If the court finds sufficient grounds, it will issue an Exclusive Use and Possession Order, legally obligating the other spouse to vacate the marital home.
- Enforcement by Law Enforcement: If the spouse ordered to leave does not comply, law enforcement may be called to enforce the order.
Legal Implications and Enforcement of Exclusive Use and Possession Orders
An Exclusive Use and Possession Order is legally binding, and failure to comply can result in serious legal consequences.
Legal Status of a Kickout Order
These orders are formal mandates from the court that must be followed, with non-compliance leading to significant repercussions.
- Temporary Nature: While legally binding, these orders are generally temporary, intended to provide immediate relief during the divorce process.
Compliance Requirements
The spouse ordered to vacate must comply with the court’s instructions. Non-compliance can lead to contempt of court charges and further legal action.
- Restricted Access: Unauthorized entry into the home after the order is issued can be considered trespassing.
Considerations and Consequences for Both Spouses
Understanding the implications of Exclusive Use and Possession Orders is crucial for both spouses.
Considerations for the Spouse Requesting the Order
- Legal Justification: Ensure a strong legal basis for the request, supported by compelling evidence.
- Financial Responsibilities: Be prepared to handle the costs associated with maintaining the home.
Consequences for the Spouse Ordered to Vacate
- Immediate Relocation: Plan for alternative housing quickly and comply with the order to avoid legal consequences.
- Legal Implications: Violating the order can negatively impact your standing in ongoing divorce proceedings.
Conclusion
Exclusive Use and Possession Orders, or “kickout orders,” play a critical role in ensuring safety and stability during a divorce. These orders grant one spouse the right to stay in the marital home while requiring the other spouse to leave, typically on the grounds of domestic violence, the best interests of children, or significant emotional distress. Understanding the legal basis for these orders and the potential consequences is essential for anyone involved in a contentious divorce. Whether you are requesting an Exclusive Use and Possession Order or contesting one, consulting with a knowledgeable family law attorney can help protect your rights.