How do I get my wife out of our rented home if she files for divorce? - Child Custody Law Questions and Answers- LawQA.com

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How do I get my wife out of our rented home if she files for divorce?

My wife of 2 1/2 years filed for divorce, and I received the papers yesterday. I was living in our current home (which we DO NOT own, we rent) before we got married. Only my name is on the lease. I want her and her 18-year-old son out of the house. What are my rights and what do I need to do? We live in California and on the divorce papers there is no requirement from the judge for me to move, however she does not want to leave. She also put the date of separation as 5/31/11.

Answer By Patrick Curry
Law Office of Curry & Westgate
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You need a kick out order from the court. hire a family law attorney and have them file the correct motion.

Answer Applies to: California
Replied: 5/20/2011

Warner Center Law Offices of Donald F. Conviser
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Unless there is a Domestic Violence Restraining Order (DVRO) issued by the Court for violence or threats of violence by your wife, she can't be excluded from your rented home. I would suggest that you and she occupy separate bedrooms and stay out of each other's way, to avoid the risk of a claim by your wife against you for Domestic Violence that might result in you being excluded from your rented home and an order that you pay the rent, as well. With regard to the date of separation in your wife's Petition, that was an obvious error, so in your Response (which you have 30 days from the date of service to file and serve), you should set forth the actual date of separation, comprising the earliest date of the date either party told the other something to the effect that she is divorcing you or that your marriage is over, or the date of your wife's signature on her Petition.

Answer Applies to: California
Replied: 5/20/2011

Michael Apicella
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You will need to file a motion with the court requesting an order for exclusive use of the residence. There are many facts and circumstances which go into an "exclusive use" determination, especially if there is a child involved that is still in high school (not clear from your question whether the 18 yr old is still in high school). Best to call a local family law lawyer to discuss the particular facts of your situation. Good luck.

Answer Applies to: California
Replied: 5/19/2011

Answer By Edwin Fahlen
Edwin Fahlen Attorney at Law
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The only way to have your wife removed is to ask the landlord to become involved and set up a cooperative eviction, (depending on the terms of your rental agreement) or to experience Domestic Violence and obtain a kick out/stay way order from the court. The Judge will not make anyone move simply because there has been a divorce filed. Alternatively, since legally you are your wife's landlord you can serve a notice and start your own eviction process. If she has lived in the home more than 1 year a 60 day notice is required. If you are seeking to hire legal counsel, feel free to telephone me for more information on how we can help you.

Answer Applies to: California
Replied: 5/19/2011

Answer By Diana K. Zilko
Diana K. Zilko, Attorney at Law
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You can file a motion with the court seeking a move out order. If you have any further questions, please let me know.

Answer Applies to: California
Replied: 5/19/2011

Answer By Paul Zahn
Law Office of L. Paul Zahn
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Under California law, there is no grounds for you removing her and her son, unless there are allegations of abuse (someone will have to move out eventually), however she is not entitled to support while the three of you live in the same home. If you are in my area, contact me for a free consultation and I will see if there are grounds for a residence exclusion order.

Answer Applies to: California
Replied: 5/19/2011

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