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Dwelling Exclusion Orders in California Divorce

| Oct 12, 2016 | Divorce

In California, dwelling exclusions or ‘kicking out’ your spouse from the marital home is possible if the spouse demanding such a request meets certain legal requirements. You may ask for a dwelling exclusion of your spouse because of their abusive nature or because of an assault or threat of an assault. Your request will be granted depending on the emergency of the situation. Code 6321 of the California Family Code states that dwelling exclusions of the accused party can be granted for a certain period of time and on certain conditions. The order requested is classified as emergency or non-emergency.

Requirements for emergency orders Emergency orders are granted if the spouse asking for the grant can meet the following conditions –

  • Providing the court with proof that he or she has ‘right under color of law to possession’ of the house. It means they either own or have a lease to the house.
  • The accused has assaulted or threatened to assault the spouse asking for the dwelling emergency order or anyone under his or her care and custody (the children).
  • The accused will cause emotional and physical harm to the spouse asking for the dwelling emergency order or anyone under his or her care and custody (the children).

Time and place and the precise extent of harm or injury will have to be proved. Only recent threats or assaults will be taken into consideration.

Requirements for non-emergency orders Non-emergency orders are easier to get. Code 6340(c) of the California Family Code states that the Court has to determine what kind of emotional physical harm will be caused if the order is not granted to the spouse seeking dwelling exclusion for the other spouse. The harm may be caused to the one making the petition or to any child or any other person under the petitioner’s care and custody. But chances or instances of assaults and threatened assaults will still have to be proven in front of the court. Matters of dwelling exclusions should never be dealt on your own. Such legal procedures are very complicated and tricky. If you are seeking a request for such an order from the court or are facing one, you should always seek the help of an experienced family law attorney. People with legal expertise can determine if you can successfully defend such requests or have strong grounds of making such requests.

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