At Irwin & Irwin,LLP, we often hear from clients who are beginning the divorce process but are still living under the same roof as their spouse. Tension builds quickly in these situations, especially when one spouse refuses to leave the home. In California, neither spouse is legally required to move out just because a divorce has been filed, which can make an already difficult process even more stressful. However, there are legal options and practical steps that may help.
Understand Your Legal Standing
California is a community property state. This means that both spouses have equal rights to live in the family residence until the court orders otherwise. It does not matter whose name is on the lease or title, until the court issues a formal order, neither spouse can force the other to leave.
That said, if there are safety concerns, or if continued cohabitation becomes unmanageable, you may be able to seek a temporary court order for exclusive use of the home.
Requesting an Order for Exclusive Use of the Home
If communication has broken down and living together is no longer workable, one option is to file a Request for Order (RFO) with the court. Through the RFO, you can ask the judge to grant you temporary, exclusive use of the family residence while the divorce is pending.
To be successful, you must show the court that continued cohabitation is causing significant conflict or distress, such as ongoing arguments, disruption to children’s routines, or emotional abuse. The court does not take these orders lightly, so supporting evidence will be important.
What if There is Domestic Violence?
If your spouse has been violent, threatening, or abusive, you may qualify for a Domestic Violence Restraining Order (DVRO). In California, a DVRO can require the abusive spouse to move out of the home immediately. The court can issue a temporary emergency order the same day you file the request, depending on the facts of your case.
A DVRO can provide a layer of safety and stability if there is fear of harm to you or your children. It can also address custody, visitation, and support issues on a temporary basis.
Consider Temporary Agreements
If safety is not an issue but living together is creating stress, you may be able to negotiate a short-term agreement through your attorneys. Sometimes, one spouse agrees to leave the home temporarily in exchange for financial support or other terms during the divorce. These agreements can help de-escalate conflict and provide space to focus on resolving the legal and emotional parts of the divorce.
Keep the Children in Mind
If you have children together, their well-being should guide how you approach this situation. Constant fighting, a tense home environment, or instability can be harmful. California courts are focused on the best interests of the child. If one parent is creating a toxic atmosphere, that may affect future custody decisions.
Maintain Documentation
If your spouse’s refusal to move out is accompanied by threatening behavior, intimidation, or manipulation, document everything. Keep records of texts, emails, voicemails, or incidents that show why continued cohabitation is unsafe or unreasonable. These records can help support your request for court intervention.
Get Legal Advice Early
This is a highly emotional and legally complex issue. Every case is different, and the right course of action depends on the facts of your situation. Speaking with a family law attorney early can help you understand your rights, the legal process, and your best options for moving forward.
At Irwin & Irwin, LLP, we represent clients throughout Orange, Los Angeles, Riverside, and San Bernardino Counties. If you are facing divorce and living under the same roof with a spouse who refuses to leave, we can help you pursue legal solutions that prioritize your safety and peace of mind. Contact our office to schedule a consultation.