Can I force my wife out of my apartment when I serve her divorce papers? 31 Answers as of August 05, 2011

My kids, wife, and I currently live in a rented apartment. If I can afford the apartment on my own (she cannot) and I have the landlord remove her name from the lease, can I insist that she leave the apartment when I serve her with divorce papers? This will unfortunately be a contentious divorce process. Also, the children would be living with me in the apartment that we currently inhabit - what are her visitation rights during the divorce process? I plan to fight for full custody. Also, she keeps threatening to move the kids to another state. Is she allowed to do so? How can I prevent this from happening?

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Beresford Booth PLLC
Beresford Booth PLLC | S. Scott Burkhalter
You should file a motion for temporary orders.
Answer Applies to: Washington
Replied: 8/5/2011
Keri Burnstein, P.C.
Keri Burnstein, P.C. | Keri Burnstein
You need to meet with a family law attorney prior to filing for divorce. You need to have court orders regarding custody and parenting time in order to stipulate what her rights are during the divorce. These orders will also prevent her from moving out of state. Without the orders there is nothing to protect either of you until the divorce is finalized. Good luck.
Answer Applies to: Michigan
Replied: 7/27/2011
Law Office of Robert L. Fiedler
Law Office of Robert L. Fiedler | Robert L Fiedler
You can't force her out. You would have to file the proper motions in court seeking exclusive possession of the home.
Answer Applies to: Connecticut
Replied: 7/26/2011
Michael Edwards, Attorney at Law
Michael Edwards, Attorney at Law | Michael Edwards
You need to consult with an attorney right away about your questions. Too many factors go into the answers to your questions, and I don't have adequate information to properly advise you. However, the short answer to your question about forcing your wife to leave is no, you cannot do that. She has as much right to be there as you do. If she agrees to leave, that is fine, but you cannot force her. When you file for divorce, you could file a motion for temporary relief, wherein you ask the court to award you temporary custody of the children, temporary possession of the apartment, etc. The Court could then order that you have temporary possession of the home, if the judge thought that was appropriate. You should probably hire an attorney to help with that process, but the paperwork to file such a motion yourself is found on the Utah State Courts website, under the forms portion of that site. Your wife's visitation rights (and yours) will depend on what the Court orders, or what the two of you agree to. As it stands, both of you have equal rights to the children. If your wife is threatening to leave the State with the kids, I would file for divorce, and file a motion for temporary relief, wherein you ask the Court to order that she not do so, at least until the issues of custody and parent time have been decided. Good luck!
Answer Applies to: Utah
Replied: 7/26/2011
Neville J. Bedford Attorney at Law
Neville J. Bedford Attorney at Law | Neville J. Bedford
Any use of force is ill advised. In Rhode Island once your complaint is filed, you are bound to the "automatic orders" which prohibit such changes without agreement between the parties and/or approval of the court.
Answer Applies to: Rhode Island
Replied: 7/26/2011
    Law Office of Roianne H. Conner
    Law Office of Roianne H. Conner | Roianne Houlton Conner
    At the time that you file have your attorney request that the COurt issue an order removing your wife from the apartment. It does not matter whether her name is on the lease or not this is the marital home and you must have a Court Order to have her removed. Further, she will only be removed if there has been some kind of violence in which she initiates the crime. Further, the children can not be removed from the jurisdiction of the Court after the documents are filed without Court approval.
    Answer Applies to: Alabama
    Replied: 7/25/2011
    Law Office of Michael W. Bugni
    Law Office of Michael W. Bugni | Jay W. Neff
    You probably shouldn't try to force your wife out of the apartment without a court order. Your interest in the apartment is probably a community property asset. So, you each own an interest in the lease or rental arrangement. You should probably get the case filed and a hearing for temporary orders set. At that hearing, the court will decide who gets to live in the apartment on a temporary basis. As to which of you will get to stay in the apartment, I have no way of predicting. If asked, it will also restrain both of you from moving out of state with the child while the case is pending.
    Answer Applies to: Washington
    Replied: 7/25/2011
    Reeves Law Firm, P.C.
    Reeves Law Firm, P.C. | Roy L. Reeves
    Forcing a party out of the house/apartment is a difficult thing. As I have written extensively, in 90% of divorces, one party just agrees to go. There are "kick out" orders but you need something to justify the request other than money. You could have the landlord move you to another apartment and leave her with this one - financial responsibility and all. Get temporary orders up front those will specify visitation rights. And, as for her moving, until there is a court case, either of you can move. Once you file, the children's residence is restricted and it is a violation of court orders to move them outside the Court's jurisdiction.
    Answer Applies to: Texas
    Replied: 7/25/2011
    Warner Center Law Offices of Donald F. Conviser
    Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
    Unless your wife has committed or threatened domestic violence against you, you can't force her to move out of your apartment, and you can't force her to be separated from the children. If you want to prevent your wife from moving out of state with the children, file a divorce case and have it served on your wife. The reverse side of the Summons contains restraining orders restraining the parties from moving the children out of state. Once she is served, those restraining orders are binding on her. Before then, she has the power to move out of state with the children, so act with due haste.
    Answer Applies to: California
    Replied: 7/25/2011
    Owings Law Firm
    Owings Law Firm | Tammy B. Gattis
    You can force her out. Judge sets temporary visitation if cannot be agreed upon.
    Answer Applies to: Arkansas
    Replied: 7/25/2011
    Joanna Mitchell & Associates, P.A.
    Joanna Mitchell & Associates, P.A. | Joanna Mitchell
    You cannot simply force your wife out of your marital home. Even if her name was not on the lease, she has a right to reside there. You would have to legally evict her, and you cannot evict your Wife. Additionally, the only way you could unilaterally remove her name from the lease would be by committing some sort of fraud, which could really backfire on you. As for the kids, right now, you both have the right to spend 100% of the time with the children. However, she cannot just take the kids out of state without your permission. Likewise, you cannot just keep the children from her. You cannot simply assume that the children will reside with you the majority of time either, as 50/50 timesharing is becoming more and more common and is frequently ordered by the courts. If you don't want to reside with her during the divorce proceeding, you might need to consider moving out yourself. Otherwise, and I've seen this happen lots of times especially with the current economic hardship of many couples, it is possible that during the entire divorce you would continue to live under the same roof with the kids. I would strongly suggest speaking with an experienced family law attorney as soon as possible in order to best protect your rights and interests, as well as direct your actions and decision during the process.
    Answer Applies to: Florida
    Replied: 7/24/2011
    Goolsby Law Office
    Goolsby Law Office | Richard Goolsby
    We recommend that you retain a divorce attorney in your area to discuss beforehand the potential negative ramifications of some of your proposed actions. Your divorce lawyer will also discuss your rights and options. But see a lawyer ASAP. Good luck.
    Answer Applies to: Georgia
    Replied: 7/24/2011
    Correia-Champa & Mailhot
    Correia-Champa & Mailhot | Susan Correia Champa
    I would need to know more information. You have asked several questions that depend on knowing more facts with respect to your particular situation. LEASE: I would be surprised if a landlord removed someone's name from an existing lease. Legally I do not believe the landlord can alter a contract. Your spouse signed the lease and she is protected under the terms of that lease, and it is my opinion that landlord cannot remove your spouse off of an existing contract until the lease expires. LEAVING APARTMENT: If you Wife refuses to leave the apartment, then you can ask the court for an order to vacate. But without more information, I cannot provide further advise. VISITATION: Again, parents have visitation rights, but without more information regarding who was the primary caretaker of your children I cannot provide any additional advise. REMOVAL: Massachusetts has a particular standard regarding removal (i.e.) taking children out of state. Without more information, I cannot provide any additional information. My advice, is that you hire a lawyer.
    Answer Applies to: Massachusetts
    Replied: 7/24/2011
    Wallin & Klarich: A Law Corporation
    Wallin & Klarich: A Law Corporation | Paul Wallin
    You cannot force your wife out of the apartment until there is a court order in place. Y
    Answer Applies to: California
    Replied: 7/24/2011
    Vincent J. Bernabei LLC
    Vincent J. Bernabei LLC | Vincent J. Bernabei
    You can't force her to move when you file for divorce. When you file, you can obtain a temporary protective order of restraint which prohibits both parents from changing the children's residence or taking them out of state.
    Answer Applies to: Oregon
    Replied: 7/24/2011
    Law & Mediation Office of Jeffrey L. Pollock, Esq.
    Law & Mediation Office of Jeffrey L. Pollock, Esq. | Jeffrey Lawrence Pollock
    To answer your question, I must pose yet other questions unfortunately. Have you filed for Custody? Did you serve her with a Custody Complaint? Is there a Custody Order (or Agreement at least)? If you kick her out, where will the kids sleep when she has them? How will the Landlord unilaterally remove her from the lease unless the lease term is expiring? Has she committed some breach? For you or the Landlord to evict her, there should be some documentation of a valid reason. For any party to change jurisdictions with the children, a Relocation Hearing would likely be required.
    Answer Applies to: Pennsylvania
    Replied: 7/24/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    No.
    Answer Applies to: Connecticut
    Replied: 7/24/2011
    Apple Law Firm PLLC
    Apple Law Firm PLLC | David Goldman
    Generally the two of you will have to pay for both places until the divorce is complete. IF she cannot afford a place, and even if she can, you will probably have to help out. These are issues you should discuss with your attorney to see what options you have and how best to approach the situation
    Answer Applies to: Florida
    Replied: 7/24/2011
    Law Office of Richard B. Kell
    Law Office of Richard B. Kell | Richard B. Kell
    You have a lot of questions that need to be addressed by speaking to a divorce attorney in much greater detail. I strongly suggest that you speak to one before filing anything with the court.
    Answer Applies to: Massachusetts
    Replied: 7/23/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    Neither you nor the landlord can remove her from the lease or evict her. Once a divorce is filed, it will be up to a court as to which of you can remain. It is not your decision. Absent a filed divorce case she can move where she pleases, and is free to take the children. Until and unless you hire a lawyer and file a case that remains unchanged.
    Answer Applies to: Georgia
    Replied: 7/23/2011
    Law Office Of Jody A. Miller
    Law Office Of Jody A. Miller | Jody A. Miller
    You cannot insist that she leave the apartment. The only way to get her to leave is to ask for a temporary hearing in a divorce case and ask for sole possession of the apartment (unless she agrees to leave otherwise). Visitation rights are determined by the facts of the case. Once a divorce is filed, generally the children are prevented from leaving the state during the pendency of the divorce; however, she can leave the state with the children before the divorce is filed (although it is likely that a Georgia court would hear the custody claim regardless).
    Answer Applies to: Georgia
    Replied: 7/23/2011
    Law Offices of Arlene D. Kock
    Law Offices of Arlene D. Kock | Arlene D. Kock
    I do not believe the landlord has the legal right to just remove your wife's name from the lease and the landlord would probably not want to get in the middle of a contentious divorce. If your wife is being disruptive to the point the court feels she could cause eminent harm to you or the children, then the court may authorize a removal or stay away restraining order. If your wife is threatening to move and take the children then it is in you and your children's best interests for you to promptly file the divorce action and a motion preventing the children's residence from being changed pending further court orders. You can also ask for the establishment of a visitation plan in your motion.
    Answer Applies to: California
    Replied: 7/23/2011
    Law Office of James Lentz
    Law Office of James Lentz | James Lentz
    You have a lot of very specific questions. Please review them with your domestic relations attorney for the best answer.
    Answer Applies to: Ohio
    Replied: 7/23/2011
    Glenn E. Tanner
    Glenn E. Tanner | Glenn E. Tanner
    You can get an ex parte order if you have abasis,barring her from the apartment, when you start the divorce. Your tactic of barring her from the apartmentby self-help means is likely to backfire on you. Use the courts to get her out legally. A basis would be domestic violence or the best interest of the children. You probably need a lawyer's help.
    Answer Applies to: Washington
    Replied: 7/23/2011
    Seattle Divorce Services
    Seattle Divorce Services | Michael V. Fancher
    No, do not have the right to make her move out, or keep her from the kids, etc. just because a divorce is filed. It is up to the court to decide those kinds of things. It would be good to file a motion for temporary orders to have the court determine who should live in the house, what the residential schedule for the children should be, etc. If there are risk factors such as domestic violence you may even be able to obtain an Order to Show Cause preventing her from coming back into the house between the time she is served and the hearing on the order. An Order to Show Cause could also restrain her from moving the children out of the area. Talk to an attorney in your area about how to initiate this process.
    Answer Applies to: Washington
    Replied: 7/23/2011
    Advanced Litigation Services
    Advanced Litigation Services | Joseph Iarussi
    Yes, but you will need to file a Motion with the Court for exclusive possession of the marital residence while the case is pending.
    Answer Applies to: Nevada
    Replied: 7/23/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    It is unlikely your landlord will simply "remove" your wife from the lease on your request. But, the question should not be "can you force her out", but "should you". Obviously, eventually one of you is going to have to move. Where the kids live is not, and should not, be decided based on who moves out. That is a question to be decided after serious consideration of what is best for them both short term and long term. Whatever you believe "full custody" means (Colorado no longer uses that term at all), you need to recognize that that is probably not what is going to happen. Both parents need to be involved in parenting and it will be unusual to exclude one parent. You and your wife should try to work out an agreement about how everthing will work during the divorce process, finances as well as where the kids spend their time, so that you can work on a longer term plan without anger and fighting. But, if you can't do that, the divorce court will conduct a temporary orders hearing to decide who lives where, and anything else you can't agree on. Until that occurs, you do not have the legal authority to dictate what happens. As soon as the divorce papers are filed and served, both parties are prohibited from removing the children from Colorado without permission of the other parent or the Court.
    Answer Applies to: Colorado
    Replied: 7/23/2011
    Osterman Law LLC
    Osterman Law LLC | Mark D. Osterman
    This is not an internet place for discussion of this issue. Whether you have a legal right, can do so peaceably and whether she has some rights too are beyond the question you stated. I would prefer that you schedule an appointment with a lawyer before you do anything. By the way, it is illegal to remove her from a lease. Good luck.
    Answer Applies to: Indiana
    Replied: 7/23/2011
    The Davies Law Firm, P.A.
    The Davies Law Firm, P.A. | Robert F. Davies, Esq.
    You can not do this like you are planning. You need to sit down and go over all of this with a good divorce attorney. Do not try to throw her out of the apartment until you know what you are doing and have a lawyer on your side. I can help you with this. And I will tell you up front what it will cost to do this for you. Give me a call, make an appointment to come see me, and let's get moving on this for you. No charge for the telephone call and no charge for the first office visit.
    Answer Applies to: New Jersey
    Replied: 7/23/2011
    Arnold & Wadsworth
    Arnold & Wadsworth | Brian Arnold
    No. That are what temporary orders are for. You need to motion the court for temporary orders.
    Answer Applies to: Utah
    Replied: 7/23/2011
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