You claim your wife kicked you out of your own home; we say she evicted you, and what she did by evicting you is far stronger than merely kicking your butt to the curb. “Evict” comes from Latin, and means to “overcome and expel, conquer, subdue, vanquish.” That does not sound like a mere butt-whooping to us. That sounds like she cleaned your clock, carved up your cajones, and laid you out lower than a snake’s belly. The question is, can she legally kick you out of the house?
Naming Names: Who is on the Lease or Deed?
Whose name is on the lease or deed? If both your names appear on either a rental agreement or the deed to the marital home, she will have a difficult time evicting you. Few Virginia judges would listen to a petition to evict you simply because she wants to start the separation clock leading to divorce.
Even if only her name is on the deed, Virginia recognizes property acquired for and during a marriage to be jointly owned property, so you still have a claim on the house.
If, though, she owned the home before you married her, and she retains the home as separate property, she can legally toss you out. If it were her family home, for example, or was left to her in a will and you moved in after getting married, she can evict you. Legally, properly, with a required waiting period and all the niceties, but she can still evict you.
If both your names are on a lease agreement, she could request the landlord to remove your name from the lease, but the landlord has no legal obligation to do that. If your lease is up soon, she could request the landlord to prepare a new lease with just her on it; the property is the landlord’s, with privileges to rent to whomever the landlord wishes.
She would have to depend on one of the fault grounds for divorce from bed and board found in Code of Virginia § 20-95, to be sure of her legal footing in the months ahead, when a judge asks her to explain her actions. She would have to claim one of these four:
- Desertion — Improbable, since you are living in the same house
- Abandonment — Again, you’re right there living in the marital home; she will have a hard time making that case
- Cruelty — Difficult to define and often harder to prove
- Reasonable apprehension of bodily hurt — Your lawyer will always advise you never to threaten your wife; you could lose your home by doing so
A divorce from bed and board means you two are not divorced from matrimony, but are compelled to live separate and apart. Oh, and you can never remarry (until after you divorce from matrimony).
Did She File a Protective Order?
Oddly, one slang way to tell someone to move out is to “beat it,” but in Virginia, evidence of spousal abuse can provide a way for one spouse to evict another. If your wife files a protective order from abuse against you, and is able to convince (through her attorney) that you are a physical threat to her, and if you have been (or are now) incarcerated, a judge can use Code of Virginia § 16.1-279.1 to order you out of your own house:
Granting the petitioner possession of the residence occupied by the parties to the exclusion of the respondent
To be clear: you are the respondent, she is the petitioner, and she can boot you out. The protective order she files against you can also prevent you from cutting off services and utilities to the home, compel you to turn over to her any “companion animals,” and force you to get treatment or counseling.
Late in the Game: Do You Have a PSA?
If you have wended your way through a divorce and have established a property settlement agreement, you could also find yourself evicted. The home may be sold to provide liquid assets for both of you, or the home may be granted to your wife. Either both of you, or just you, may be forced to move out.
How Can You Avoid Eviction?
Besides the ignominy of being evicted from the house you shared in marriage, an eviction is also an expensive and needlessly adversarial act. When done according to Virginia law, it can take a minimum of three weeks to evict a renter; evicting a spouse from a marital home is messier and takes longer.
An alternative to eviction is to discuss your options with your spouse, including the ability to continue living in your marital home separately, moving to a second home you both own, or moving to an apartment.
You do not need to call 757-383-9184 from home. You can reach the law offices of The Firm For Men from the bus station, your cell phone, or tucked in for the night under the Virginia Beach boardwalk. Better yet, contact us online from the climate-controlled comfort of the Virginia Beach Public Library. Our practice is dedicated to preserving and defending the rights of Virginia’s men in all manner of family law, including spouse-ousting wives.
