Ask an Attorney: Can my spouse legally kick me out of our home during a divorce?

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Question: Can my spouse legally kick me out of our home during a divorce?

Answer: In most cases, no. If a couple decides to file for divorce, a spouse cannot simply tell the other, “This is my house. You need to leave.” Here’s why:

Married people have equal rights to the home

Nevada is a community property state. That means assets acquired during the marriage belong equally to both spouses, regardless of whose name is on the asset. This includes the family home, whether you rent it or own it.  

In the eyes of Nevada law, it is both of your homes. So, a spouse can’t just go out and change the locks on the home. That can actually get them in legal trouble.

However, if the home was owned by one spouse before marriage, it may be considered “separate property,” and the owner might have a stronger legal claim to it. But even then, that does not automatically give them the right to kick out their spouse.

Only a judge can order someone to leave

The only way to legally remove a spouse from a marital home or marital apartment is to get a court order. Nevada family courts can issue what is called an “exclusive use and possession” order. This tells one spouse they must leave the home while the divorce is being worked out.

A judge will look at several factors before making that decision, including who has the stronger legal claim to the home, who has primary care and custody of any children, whether the spouse who would have to leave has somewhere else to live, and whether either spouse has been verbally or physically abusive.

Domestic violence changes everything

If there is abuse in the home, the law moves faster. A victim of domestic violence in Nevada can go to court and ask for an emergency protective order. This can be done quickly, sometimes the same day. Once granted, the abusive spouse can be legally removed from the home right away, even before a divorce is filed. Nevada courts take these orders very seriously. Violating a protective order is a criminal offense.

Renters face the same rules

If both spouses are on the lease, neither one can simply force the other out. The landlord is not the one who settles this—a court is. If only one spouse is named on the lease, things get more complicated, but the courts can still step in to protect the other spouse’s right to stay during the divorce process. 

The bottom line

The law protects both spouses’ right to stay in the marital home until a judge decides otherwise. Both spouses have rights. The question is how those rights are sorted out. In Nevada, that happens in a courtroom, not with a changed lock.

If you have questions about your divorce or custody issue in Las Vegas, the attorneys at Right Lawyers are here to help.  We offer flat-fee divorce services and free consultations so you can get real answers without the guesswork. Visit us at www.rightlawyers.com or call our Las Vegas office to speak with an attorney.

Please note: The information in this column is intended for general purposes only and is not to be considered legal or professional advice of any kind. You should seek advice that is specific to your problem before taking or refraining from any action and should not rely on the information in this column.