22 May Can You Kick a Spouse Out of Your Home in California?
Living with a significant other doesn’t always go smoothly. Sometimes it ends in separation or divorce. For the unlucky few, it can involve real danger and distress: domestic violence, stalking or sexual abuse is something that has affected nearly one in three women in California at some time or another. It’s not an easy subject to quantify as not every case of domestic violence is brought out into the open. While cases of violence by people with whom you are not related or who you do not know usually result in notifying the police, it’s often covered up or even tolerated when the violence is perpetrated by a spouse or intimate partner. Domestic violence by one spouse against another is also often accompanied by child abuse.
Definition of domestic violence
In California law, domestic violence is an act of violence by a spouse, a cohabiting partner, dating partner or an adult with whom you have had a child. Domestic violence can result in a criminal conviction for battery. There are several different versions of battery according to California’s statutes. Section 243(e)(1) is battery against a member of the immediate family; section 243(d) is a more serious category of battery against a member of the immediate family. Those convicted of battery may be fined and spend time in jail or prison, depending on the severity of the offense.
Keeping a violent spouse or partner out of your home
Many cases of domestic violence do not end up in a criminal charge being laid. What can someone do if they are afraid of being hurt by someone that they have been living with intimately yet the relationship has deteriorated to the point where violence or potential violence is a very real possibility?
Someone who feels that they could suffer violence, or a threat of violence by a spouse or partner, has two possible legal avenues they can take. These are:
- a restraining order; and
- an exclusion order.
Of the two, the easiest to obtain is the temporary restraining order (TRO). This can be applied for either through the civil court or the criminal court. The latter would mean that a criminal allegation has been already laid against the person. A restraining order or protective order doesn’t necessarily have to involve direct physical violence but can be imposed if the person who applies for it is emotionally abused as well. A TRO is the first stage in a more permanent restraining order and if granted by a judge, will prevent the person being ‘restrained’ from coming within a certain prescribed distance of you, or any dependents of yours, such as your children.
An exclusion order, if granted, prevents someone else from entering or using your home. It’s not quite as easy to obtain as a TRO as there are certain preconditions before it can be considered. Specifically, an exclusion order may be granted if you can prove that:
i) you own or have the right to occupy the home you want to exclude the other person from;
ii) the person you wish to exclude has either attacked you already or threatened to attack you, your children or dependents who live with you;
iii) if the exclusion order cannot be obtained, you are in real danger of being attacked by the person you wish to exclude.
Under Family Code 6321, you can apply for an exclusion order in court with the help of your family law attorney. Your attorney can help you prepare an ex parte hearing. Generally, the court is reluctant to grant an exclusion order unless an emergency situation can be demonstrated, but you may be able to apply for an exclusion order under Family Code 6340(c)(2), which asks for a lower level of proof of potential danger than 6321.
Domestic violence is serious business and the main aim for you and your children should be to stay safe. Contact a family law attorney at the Law Office of Damian Nolan to discuss your options for a TRO or an exclusion order. You can reach his office in Lakewood or Long Beach office in California at 562-634-1115.