Your marriage is on the rocks, you can’t stand being in the same room with your spouse, and you want to get rid of them—can you kick them out of your residence if you live in Texas? OR you’re in a situation where spouse locked me out of house already. What can and should you do? Before you change the locks on your marital home or try to break in, you should probably read this blog.
Can I lock my spouse out of the house?
Before we dive into how to kick your husband out of the house legally or kick your wife out legally, let’s discuss why you shouldn’t change the locks on your marital home and what happens when a wife or husband locked me out of house.
If your burning question is: Can I lock my husband out of the house or wife out of the house? The answer is “no, not unless you obtain a protective order to do so first (more on that in the section below: Kicking spouse out of house legally in Texas—how it works), and there typically needs to be an allegation of family violence that precedes it, too.
Clients tell me all the time, “Well, it’s going to be uncomfortable having him/her in the house. He/she’s going to get mad. He/she’s crazy. I don’t know what he/she will do.” However, it that doesn’t mean you can lock your spouse out of the house and get away with it.
You can’t lock somebody out because you believe they may be a criminal. They have to commit the crime. Telling the court you’re afraid for your safety because someone has yelled at you in the past, and therefore, you think they’re going to abuse you, isn’t going to fly in the Texas family courts.
One mistake that many people make during divorce is believing that standard temporary restraining orders (TROs) can be used to remove a spouse from the home, when the opposite is actually true. TROs that are put in place always include provisions that say you are excluded, precluded and enjoined from changing the locks on the residence and excluding someone from the use and enjoyment of that residence.
So instead of keeping your spouse out of the house the TRO would preclude you from excluding that person from the residence. That shows, in and of itself, why courts won’t exclude someone from the residence absent a threat of family violence. It’s their property, too. Kicking that party out would amount to depriving the party of property without due process, and that is unconstitutional.
What if I own the house, can I kick my spouse out?
Our firm also gets questions like, “Can my husband kick me out of the house he owns?” or “Can I kick my husband out if I own the house?” The answer to these burning questions is also NO. Everything is considered community property until proven to be separate property during a Texas divorce, so even if it is your house from prior to marriage, you cannot kick someone out or change the locks.
Who gets to keep the house or proceeds from the sale of the house—along with other assets you own—will be determined by the court when the judge fairly and justly divides the community estate between the two spouses. Many factors play into the division of a couple’s marital estate, so who ends up living in the house (and it may be neither of you) will depend on the circumstances of your specific case.
My spouse locked me out of house, what can I do?
When somebody locks one of my clients out of the house, the first thing I typically do is tell them: Call the police. Bring a witness. Have your phone ready to record. Go to the door. Turn on your phone and knock on the door. If your spouse won’t open the door, it’s important to have the police there.
Then you can tell the other party, “I’m going to break the window here or I’m going to have a locksmith come and allow me to enter the residence if you don’t open the door.” You don’t necessarily have to break a window or break the door in, but you can. It’s your own property.
You also don’t want to give your spouse ammunition to make an allegation of family violence against you. For example, they could take a picture of you smashing a window and say YOU went crazy. That’s why it’s essential to have your phone video rolling, have a witness there, and bring the police.
It’s also important to make the entry into the house, at least on paper, evidenced by the evidence. If you don’t have to be back in the house tomorrow, and you can wait and go somewhere else for a few days, that’s fine. But as far as kicking someone out, locking someone out and changing the locks, temporary restraining orders are put in place to prevent those actions from happening.
Kicking spouse out of house legally in Texas—how it works
If you’re wondering how to kick your husband out of the house legally or how to kick your wife out legally, the Texas Family Code Chapter 83 includes specific guidelines regarding when and how you can legally “exclude” or kick out a spouse from the marital home.
First and foremost, you can’t kick somebody out or lock someone out of the house until you have a hearing. You also can’t get a kick-out order in the state of Texas unless there are family violence allegations. In addition, you typically cannot remove or lockout your spouse without a protective order application requesting specific relief (remove spouse from the home) and evidence proving allegations that the spouse’s actions have elevated to family violence.
The person applying for the protective order must also prove he or she has been living in the marital home within the past 30 days. In addition, the court must also find based on the affidavit, evidence and/or testimony provided that the other party committed an act of family violence against a member of their household within 30 days of the application for the protective order being filed.
If the judge believes the allegations of family violence are legitimate—that there is a clear and present danger of family violence—he or she can sign off on the protective order requesting the spouse be excluded from the marital home and order the spouse to leave.
Emergency protective orders, known as temporary ex parte protective orders in Texas, are valid for the specific period of time stated in the orders, usually 20 days. Should a clear and present danger of family violence persist, the applicant can request (or the court can motion) that the temporary ex parte protective orders be extended in increments of 20 days.
While the state of Texas does require the person who applied for the temporary ex parte protective order to appear in front of the judge, the state does NOT require that the other party be present during the hearing in order to execute the temporary ex parte protective order.
However, per the Texas Family Code Chapter 83: “The court may recess the hearing on a temporary ex parte order to contact the respondent by telephone and provide the respondent the opportunity to be present when the court resumes the hearing. Without regard to whether the respondent is able to be present at the hearing, the court shall resume the hearing before the end of the working day.”
The respondent does have the right to file a motion to terminate or vacate the temporary ex parte protective order. Once the motion to vacate has been filed, the court must then schedule a hearing on the matter as soon as possible.
In Texas, you also have the option to request a two-year protective order under certain circumstances. To obtain the full two-year protective order, you must place the other party on notice and give them the opportunity to appear in court to dispute the order.
A note about NOT vacating the marital home during the divorce process
If you want to stay in your house, or you want to fight for child custody, or you don’t want the other person to stay in the house while you pay for it—you typically shouldn’t move out right away.
When you move out, you set a precedent and give the court an out to create a tie-breaker, to say, “All right, well, you took your stuff, you left the kids there. You wouldn’t have done that if that person was dangerous. You wouldn’t have left all your stuff there if it was that important, and you wouldn’t have gone and moved into this other place if you really wanted to stay in your home.” It’s an easy decision for the court to allow your spouse to stay in the house, which means you will need to find somewhere else to live.
The other side to that coin is: If you’re going to claim that your spouse is violent and a danger to you and your kids, but you stay in the house with them because you’re more concerned about your personal assets, that shows the court you’re not really afraid of family violence.
Conversely, your spouse might really be a jerk, they might be crazy, and they might show propensities for violence. If you have a genuine belief that that’s the case, a week or so away at mom’s house is not going to subject you to the downfall of your entire case—and losing the right to live in your home permanently. You can say, “Hey, here’s the way he/she was. Here’s the way he/she was treating me.”
And, this is IMPORTANT: You need to pull out your phone and record your spouse’s crazy and violent behavior. It’s as simple as that. Just turn on your phone and record him screaming at you or her screaming at you, and then bring that to your attorney. He or she can then go into court and say, “Judge, here’s why he or she moved out and stayed somewhere else for the week. Would you stay in this environment?” No.
It’s an easy remedy if you really think it through. But this whole idea that it’s an emergency, that “I’m in fear of my safety”—if that IS the case, then you really need to have some evidence that family violence has occurred in the past.
That evidence (like a video recording on your phone) should be something other than your statement that family violence is likely to occur in the future. When you have evidence to prove that threat, then you do need to get a protective order or kick out order or move somewhere outside of the house so that the next 14 days (the amount of time you typically have to wait to get a hearing for temporary orders) are not so uncomfortable.
If you want to get your spouse out of your home, seek legal advice first
If you are a wife who is wondering can my husband kick me out of the house, or a husband who is curious about the same, or you need to know what to do after spouse locked me out of house, it’s critical to get legal advice from a family law attorney who practices in the state where you reside. The rules regarding can my husband kick me out and can my wife kick me out do vary from state to state.
Our Fort Worth family law firm can answer questions for Texas residents who want to learn more about their options for divorce, child custody and temporary ex parte orders. We can also take a deeper dive into your community estate, discuss protection of assets and explain what options you have for staying in your marital residence during and after your divorce.
If you live in Texas and would like to speak with a family law attorney at our law firm, contact us. As a prospective client, your journey all starts with an in-depth case review with our founder divorce attorney Justin Sisemore. Justin will take a deep dive into your case and provide a case-specific strategy on the spot so you know exactly what steps to take next.
To schedule your confidential case review, please call our Fort Worth law office at (817) 336-4444 or connect with us online.
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