Domestic violence is an unfortunate reality in many relationships in California. Sometimes a violent assault is a trigger to get a divorce, or violence might break out once divorce papers are served. Domestic violence often leads to a separation and the dissolution of a marriage.
It's important to note you do have legal protections during this difficult time, and you should protect yourself and your children. If you are the victim of domestic violence, or believe your spouse could become abusive during the divorce process, you might be able to obtain some protection.
Under California law, you can obtain a restraining order that will keep an abuser from contacting you or coming near you. But what if your abuser lives in your home? California family law courts offers spouses an opportunity to submit a petition to the court for protective orders during a divorce proceeding.
They are designed to reduce the chances of domestic violence incidents from occurring. If you are living with your spouse under reasonable fear they might harm you are the kids, the court could issue what is commonly known as a “kick out order.” Stated simply, you can get a judge to order your spouse to leave the home for a certain amount of time.
Furman & Zavatsky is here to help any victims of domestic violence during a divorce. Contact us one of our Los Angeles domestic violence lawyers for more information. Let's take a closer look below for more information on a kick out order. Learn the steps to take if you are emotionally abused during a California divorce.
What is a Kick Out Order?
In simple terms, a kick out order is essentially a way to get your spouse legally removed from the home for a specific amount of time. It's a type of restraining order designed to protect a spouse against actual or threats of domestic violence.
They are very effective if a domestic violence victim is seeking to divorce their abuser. In situations where spouses are still living together, it's frequently difficult for a an abused victim to find the courage to tell the other they want to get a divorce out of fear of harm.
However, if the abusive spouse is legally removed from the home, it becomes much easier to find the strength to file a divorce petition while feeling safe from retaliation.
How Can an Abused Victim Get a Kick Out Order?
As stated above, kick out requests are a form of a restraining order that can be issued on an emergency basis. In Los Angeles family law courts, the victim must be able to establish certain facts to get a kick out order.
Under California Family Code Section 6321, a family court judge can issue a kick out order if you meet these three requirements:
- You have a legal right to possess the residence. Typically, this means your name is on the lease or mortgage or that you make rent or mortgage payments. But you might also have a right to possess the residence if you have lived there for a while as your home.
- Your spouse has assaulted or threatened to assault you or the children.
- You or your children would suffer harm if your spouse is not kicked out. The harm can be emotional, physical, or sexual.
You need to gather sufficient evidence to prove each element. For example, if you have a police report documenting domestic violence, then you should include that with your paperwork. You can also rely on your own memories of an assault. The key is not to make a frivolous or unsupported request for a kick out order since that will only serve to reduce your credibility in front of the judge.
Again, you can get a kick out order on an emergency basis, which means that the judge will make a decision without hearing from your spouse. Contact a Los Angeles domestic violence lawyer for help making a proper request.
What Happens If the Court Approves a Kick Out Order?
If the judge grants the kick out order, then your spouse must leave the home. This is true even if your spouse's name is on the mortgage or lease. This temporary order suspends the abusive spouse legal rights to the home.
It requires them to leave the property and stay away from the premises for a specified period of time or even until the time their family law situation has been resolved.
You probably need the police to help enforce the order to reduce the chances of further violence occurring. If your spouse tries to come back into the home, you can call the police and have him picked up. A judge might also hold him in contempt for violating the order, which could result in fines or even time in jail.
Next Steps if You are Denied a Kick Out Order
Judges do not simply rubber stamp all requests for kick out orders, so you might have your request denied. It is important to consider next steps so that you can protect yourself and your family.
For example, you might request a removal order under California Family Code § 6340. This law allows you to request your spouse's removal if they would cause harm to you or the children. Unlike with kick out orders, there is no requirement that your spouse have assaulted you or threatened to assault you (or your children).
Another difference between a kick out order and a removal order is that the kick out order is granted on an emergency basis. Before you can get a removal order, the judge must give your spouse a chance to present his or her side of the story.
Sometimes, it is possible to get a removal order but not a kick out order, so this is an option to pursue with your Los Angeles domestic violence attorney. The result will be the same—a judge will order your spouse out of the home.
How to get a Temporary Restraining Order During Your Divorce
If you are going through a divorce and have fear for your safety, you might be able to obtain a temporary restraining order to get your spouse out of your home. The specific type of restraining order that could be issued by the Los Angeles family law court depends of the type of evidence you provide them.
The California divorce lawyers at Furman & Zavatsky has obtained many kick out and removal orders for our clients, and we understand the steps to obtaining one. Los Angeles family court judges take a hard look before granting an order, and your submission needs to be airtight.
You should have the best legal help available. For more information about how to get a kick out order, contact our law firm at 818-528-3471 or submit our contact form.
Furman & Zavatsky LLP
15821 Ventura Blvd #690
Encino, CA 91436