Posted On: October 31, 2010

Impending California Divorce Does Not Lead to Automatic Kick-Out of Spouse

I find it fascinating when celebrities in the Southland discover that California's community property rules apply to them, too.

Pop diva Christina Aguilera is divorcing her husband, Jordan Bratman. However, she apparently finds herself living in a luxury hotel in Los Angeles nowadays, according to the Daily News. It's not that she doesn't have a house of her own. Far from it. The problem is that her soon-to-be ex-husband still lives there.

Under California community property law, a home acquired during marriage is presumed to be community property. Even if the home was acquired in one spouse's name, both spouses have an equal right to possession and occupancy of the home during the divorce proceedings. Only when a divorce becomes final, and the property disposed of, does the obligation to move out apply.

There are exceptions, of course. One spouse might successfully convince the Court to make a pre-trial determination that a house is separate property and not community, in which case an early kick-out order may apply. Or, there might be domestic violence or other harassment which could lead to an order for a spouse to vacate the home (along with a restraining order).

However, there is no law in California that permits one spouse to simply just order or demand that the other spouse vacate the house just because the parties are divorcing, no matter how bad the situation might be.

Seasoned California family law attorneys know that this is the case; however, I have been bombarded in the past two years with motions from opposing parties and their attorneys requesting exclusive use and occupancy of a home without any kind of a showing that there is any violence, harassment or threat of such. Perhaps the stress of our current economic conditions is leading to more of these requests, in that the parties simply cannot tolerate being in the same home together. However, even in poor economic times, there is no authority for the proposition that one spouse has superior rights to possession and/or occupancy of a community home absent extenuating factors.

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