With a 13 percent eviction rate, Virginia has an eviction crisis, according to Eviction Lab. With 1,079,291 renter households in Virginia paying a typical rent of $1,900 per month, this fact alone is worrying. But what if the person evicting you is not your landlord, but your wife? How can a family law attorney keep you from being homeless?

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My Wife Told Me to Leave

Generally speaking, your spouse cannot kick you out of the house. Your wife has almost no legal grounds to toss you from the marital home, whether that is a home you are renting from a landlord or buying from a bank or lender. She can try to get you on a bus, Gus, but the law is against her:

  • A rental lease showing both your names means you are both legal renters — lessees — and both are entitled to the “the lessee’s quiet enjoyment of his term” as laid out in Virginia law under Code of Virginia § 55.1-1604
  • The same code goes on to describe your rights: you “shall peaceably possess and enjoy the demised premises, for the term granted, without any interruption or disturbance from any person” (our added emphasis)
  • A deed or title to your property with both your names means the home and property belong equally to you both (it is jointly owned) and you have a legal right to reside in it
  • A deed or title to your property with only one name does not automatically entitle either of you to toss the other to the curb; if the home can be classified as marital property under Virginia Code § 20-107.3, you both can lay claim to equitable shares (and neither of you can throw the other out)

Can My Wife Evict Me?

If you and your wife rent, your wife can do a few things to make your life miserable, though Virginia’s landlord and tenant laws are clear:

  1. She can ask the landlord to remove your name from the lease; the landlord is not legally compelled to do that (so stay on the good side of your landlord)
  2. If your lease is due to expire, she can ask for a new lease in her name alone, then ask the landlord to pay a court filing fee to file a notice of eviction and give you five business days or up to 30 days to move out
  3. Eviction from a landlord (not from your wife) is a lengthy process offering you plenty of time to prepare a case against your eviction

If you and your wife live in a home she owned before your marriage, and she uses her income to pay taxes, utilities, and maintenance, she can legally claim it is still separate (not marital) property. Then she really can toss you out, since her name alone will be on the deed or title. The process will cost her some money, time, and court filings, but she can evict you. Rather, she can file for exclusive use of her separate property. She can do that, though, only after filing for divorce.

If you outright own a marital home together or are paying a mortgage together, your wife can try to have the lender remove your name from the mortgage. This is an unlikely tactic, since the lender would then expect her finances to be strong enough to pay the mortgage without your income.

More likely than any of those scenarios — and more likely to succeed — she could turn to one of the fault grounds for divorce.

Claiming Fault Grounds

By claiming one of the four fault grounds for divorce, your wife can defend eviction actions taken against you to a Virginia Circuit Court judge. The four fault grounds are found in Code of Virginia § 20-95:

  • Desertion — Success here is improbable, since you are living in the same house and she is actively trying to throw you out
  • Abandonment — Also unlikely to succeed in court, since you are living in the marital home and have made no overt actions to abandon your wife or the home
  • Cruelty — Difficult to define and often harder to prove in court (unless you have done something both stupid and reprehensible)
  • Reasonable apprehension of bodily hurt — If she can prove this, it is one of the surest ways to lose your marital home, your divorce suit, and your peace of mind

These are all awful reasons to pursue a divorce. She makes you out to be a horrible person, and if she can prove that your behavior prevents her from living peaceably in your marital home, you can be tossed out. The process is messy, unpleasant, and lengthy.

Can a Protective Order Make Me Leave?

More effective than filing divorce based on fault grounds, a petition for a protective order against you could prevent you from living in the marital home.

In filing for this protection through her attorney, your wife (the petitioner) is claiming you, the respondent, are a threat to her safety. Her attorney will invoke Code of Virginia § 16.1-279.1, which states in part:

Granting the petitioner possession of the residence occupied by the parties to the exclusion of the respondent

You could be ordered to have absolutely no contact of any kind with your wife. You would be required to leave the marital home immediately upon a judge’s order. Protective orders expire in three tiers:

  1. Emergency Protective Orders (EPO) — These last for 72 hours or until the next session of court, whichever is later
  2. Preliminary Protective Orders (PPO) — These last 15 days, or until the final Protective Order hearing
  3. “Permanent” Protective Orders (PO) — A judge can grant a PO that lasts for up to two years, without limit to the number of protective order extensions that can be granted by a judge

Any level of protective order can require you to pay for utility services in the home you cannot live in, return family pets to her, and compel you to receive therapy or counseling.

Making a New Plan

Your wife may be unaware of some basic laws affecting divorce and separation in the Commonwealth. She may not know you can both continue to live in the same marital home even while separated and awaiting divorce.

If she is so angry, uncommunicative, and resentful that she is trying to kick you out of the house (or, worse, already has), you need to have your family law attorney talk not to her but to her lawyer.

Your attorney can present your side as reasonable, without actually pointing out the distinctly unreasonable behavior of your wife. You and your attorney can plan a strategy to present to your wife’s lawyer (better in this case if she has one!):

  • You want to be recompensed for costs of being “tossed out,” such as food, gas, and lodging expenses
  • You want acknowledgement in writing that you can move back into the marital home without fear of retribution from your separated spouse
  • You want a property settlement agreement that spells out the conditions of separation leading to divorce while living under the same roof (no sex, no gifts, no favors, no assistance of any kind for each other; your lawyer can spell everything out for you)

If your wife’s behavior means you cannot abide by your abode, cannot reside in your residence, or cannot feel docile in your domicile, your attorney has a calm, legal solution.

Your lawyer can file for a pendente lite hearing that asks a judge to order your wife to pay for a second home or an apartment. That money may come from jointly held marital funds — reducing your equitable share after the final divorce decree — but at least you would not be shouldering the burden of a lease or mortgage alone.

Property Settlement

By creating a property settlement agreement (aka separation agreement) early in your separation and pending divorce, the two of you can prevent clashes like eviction and open hostility. A properly crafted separation agreement can ensure tranquil living for both of you during the six-month waiting period (without children in the picture) or the one-year wait (with kids).

A property settlement agreement can also allow you both to sell the marital home, split the proceeds, and move into your own lodgings.

Other options through the separation agreement could be:

  • To have one of you buy the other spouse out of the mortgage
  • To refinance in one person’s name only
  • To retain joint ownership but both move out, turning the marital home into a rental property.

If you are reading this from a relative’s or friend’s couch because your wife has already kicked you out, immediately reach out to a competent, experienced family law attorney. You have a right to a safe and tranquil home. You have a right to stay in your marital home, whether you rent or own.

You can reach the law offices of The Firm For Men at 757-383-9184 to arrange an initial consultation. Better yet, contact us online for immediate help. Our practice is dedicated to preserving and defending the rights of Virginia’s men in all manner of family law, including spouse-ousting wives.