How to Evict Your Spouse So You Can File For Divorce

Legally separating from your spouse in order to obtain a divorce is an uncomfortable situation, but it’s often necessary for a happy future.

Last updated on May 2nd, 2019

Filing for a “no-fault” divorce in Virginia is probably the simplest way to get divorced. A no-fault divorce isn’t based on the fault of either party, but, rather, on the length of separation of the parties.

To be physically separated, you must live “separately and apart.” This usually means living at different addresses. This might seem excessive and inconvenient, and can certainly be expensive, but it is often necessary

To qualify for a no-fault divorce in Virginia, you must have at least 6 months of physical separation from your spouse before divorce proceedings can continue (or 1 year if you have children).

If they choose not to leave, you might think about formally evicting them from your home. However, under Virginia law, neither spouse can evict the other from a shared family home without the assistance of a court order.

For this reason, you may have to find another way to live “separate and apart” from your spouse if they choose not to leave willingly.

Below, we’ll list a few ways for you to either evict your spouse or find a way to separate yourself from them in preparation for a divorce.

File a Protective Order

In cases of abuse or domestic violence, Virginia residents may apply for a protective order with the courts. Protective orders (sometimes called restraining orders) impose harsh penalties on anyone who breaks them, such as jail time and massive fines.

If your situation calls for the immediate removal of the spouse due to abuse or domestic violence, you should file for a protective order with the courts.

In Virginia, protective orders can:

  1. Prohibit acts of injury to persons or property.
  2. Prohibit contact with petitioner and/or family if deemed a threat to health or safety.
  3. Grant the petitioner sole access to the shared property (this does not transfer the legal property ownership).
  4. Prevent the respondent from ending necessary utilities and services.
  5. Grant the petitioner temporary use of shared vehicles.
  6. Require the respondent to provide suitable housing should the petitioner desire to leave the shared property.
  7. Require the respondent to receive treatment and counseling.
  8. Grant the petitioner temporary guardianship of family pets.
  9. Grant the petitioner temporary custody of minor children.

Protective orders can act as a powerful deterrent in cases of abuse or domestic violence. In some cases, if approved fully, they can also help with the eviction process during divorce proceedings.

Living Separate and Apart Under Same Roof

Just as it sounds, living separate and apart under the same roof is an option for those who are pursuing a divorce but don’t want to (or financially cannot afford to) vacate a shared residence.

In these cases, it is critical for you to fully separate yourself from your partner. Even one slip-up can cause the clock to reset.

For “separate and apart” to apply, you and your spouse need:

“[To] have lived separate and apart without any cohabitation and without interruption for one year. In any case where…there are no minor children…a divorce may be decreed on application if and when the husband and wife have lived separately and apart without cohabitation and without interruption for six months.”

Virginia Code § 20-91

This includes financially, socially, and physically. You have to live fully separate and apart from the spouse.

However, Virginia law does not necessarily require you to occupy separate residences in order to do so. All you need to do is prove in court that there is no intimacy and everything else has been separated.

On the Legal Side

Your main goal is to prove to the judge that the separation is real. How you and your spouse represent yourselves to your friends and the community is important.

Dating other people, attending different social events, openly acknowledging the failed relationship, and/or limiting your time together will all show the court that you are really separated.

Witness testimonies that support your claims of separation are also necessary if you choose this path. Generally, these are gathered from friends and relatives of both parties.

Couples who choose this path cannot sleep in the same bed together, nor share any intimate relations with one another. Should this happen during the trial separation, the clock on separation time will start over.

Further, the clock might also restart if both spouses decide even once to “try again” to make their relationship work. Such an action hints that they lack the intent to remain separate.

Separate bedrooms and limited interaction in common areas such as the kitchen, bathroom(s), or family room(s) are encouraged. The judge will decide if the separation was enough to qualify for a divorce.

Negotiate

Another method is negotiation. Working with your spouse to determine who should leave the property can be a cleaner break that avoids court delays, cost, and interference.

You can work together to figure out who will leave, where they will stay, how much it will cost, and how long they will reside there.

After you’ve figured out your housing situation, work out a separation agreement. This allows both of you to have everything in writing and signed into agreement by both parties.

It’s not an easy solution. Depending on the situation, negotiation might be impossible. Mediation may help, but ultimately the decision should be mutually beneficial.

Old-Fashioned Eviction

If all other attempts fail, you can always try to evict your spouse the old-fashioned way. However, whether or not this option will work will depend on your landlord and the specific terms of your lease or housing situation.

First, you should live as though you are fully and formally separated. You cannot legally claim separation while living together as a “happy couple.” You have to commit to your decision to leave the marriage, and act on that decision physically, economically, and socially.

If you’re renting, talk to your landlord and see what you can do about evicting your spouse. If only your name is on the lease, there may be some room for negotiation with the court to have your spouse removed.

Having the support of the landlord is beneficial because the building is under their ownership, and therefore, under their jurisdiction. The landlord can decide which tenants qualify for the lease, and if there is a serious domestic issue, contact them to see how they can help.

Again, remember that you cannot evict your spouse from a shared property (such as a home) which was acquired during the marriage through traditional methods. Because your spouse has an equal interest in the property, you each have an equally viable claim for living there.

Vacate the Shared Property

It isn’t always the desired solution, but it might be necessary in certain situations.

If your spouse refuses to leave in order to fulfill the six-month separation requirement (one year of children are involved) necessary to proceed with a divorce, you can choose to vacate the shared property.

You should be aware that this option is often case-sensitive, and should always speak with an attorney before choosing to move out of a shared home.

What’s Mine is Still Yours

Virginia law recognizes shared property between spouses. The court considers almost all property gained or acquired during a marriage as shared, regardless of who’s on the title.

Therefore, if your name is the only name on the paperwork, it doesn’t change the fact that the property is owned by both spouses.

The only way to legally have them removed from the home is negotiation, a protective order, or a petition to the circuit court for divorce from bed and board (as noted below).

File a Divorce from Bed and Board

In Virginia, there are two recognized forms of divorce: a divorce from bed and board, and a divorce from the bond of matrimony.

A divorce from the bond of matrimony dissolves marital responsibilities. You can consider this the “regular” form of divorce. You should file for a divorce from the bond of matrimony in cases such as adultery, felony incarceration, or living separate and apart as mentioned earlier.

On the other hand, a divorce from bed and board acts as a kind of shortcut to the regular divorce process. A divorce from bed and board can dissolve the marriage on the grounds of cruelty, physical abuse, desertion and abandonment. To quote the code:

“In granting a divorce from bed and board, the court may decree that the parties be perpetually separated and protected in their persons and property.”

Virginia Code § 20-116

A divorce from bed and board essentially divides the property and separates the spouses, without actually finalizing a divorce. This is similar to a legal separation in other states.

This will allow you to physically remove your spouse from the home without waiting for the separate and apart requirement. You can later convert a bed and board divorce to a regular divorce once the required separation time has passed.

Conclusion

There are several legal paths you can take to separate from your spouse before a divorce. Figuring out which one works best for you can often require the assistance of an experienced attorney.

In general, getting a spouse to move out is a complicated process. Hiring an attorney can make this process easier.

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