In Texas, you cannot force your spouse to leave the marital home without a court order, even if your name is the only one on the mortgage or lease. The exception is family violence: if you can prove your spouse committed violence against you or your children within the past 30 days, a judge can issue a protective order that removes them from the home.
Whether you’ve been locked out, want your spouse to leave, or need protection from a violent partner, understanding your legal options is critical. The family law attorneys at Varghese Summersett have helped hundreds of North Texas families through these exact situations. Here’s what you need to know about living arrangements during a Texas divorce.
Can My Spouse Force Me to Move Out During a Divorce in Texas?
No. Neither spouse can force the other to leave the marital home without court intervention. Under Texas law, both parties have a legal right to remain in the residence until a judge orders otherwise, regardless of whose name appears on the deed or lease.
Texas is a community property state, which means most assets acquired during the marriage belong to both spouses equally. This includes the family home. Even if you purchased the house before the marriage or only your name is on the title, the property is presumed to be community property until a court determines otherwise during divorce proceedings.
The only way to legally remove a spouse from the marital home is through a protective order based on family violence allegations. Simply wanting your spouse gone, or even owning the house outright, does not give you the right to kick them out.
What Should I Do If My Spouse Locked Me Out of the House?
If your spouse locks you out and your name is on the lease or mortgage, you have every right to re-enter your home. Here’s what to do:
Call the police. Officers can help facilitate your entry and document the incident. Having law enforcement present often prevents the situation from escalating.
Bring a witness. Ask a friend or family member to accompany you. Their testimony could be valuable if the matter goes before a judge.
Record everything. Use your phone to document the locked doors, any confrontation, and your peaceful re-entry. Video evidence protects you against false accusations.
Call a locksmith if needed. You are legally permitted to have the locks changed or call a locksmith to gain entry to your own home. In urgent situations, breaking a window or door to enter your residence is also within your rights.
Whatever you do, remain calm. Avoid physical confrontation. Your goal is to document your spouse’s attempt to illegally exclude you from your home while demonstrating that you acted reasonably.
Can My Spouse Cancel the Lease Without My Consent?
It depends on whose name is on the lease. If only your spouse’s name appears on the rental agreement, they may have the legal ability to terminate it, which could force you to find other housing. However, if both names are on the lease, neither party can unilaterally cancel it.
If you’re renting and concerned about housing stability during your divorce, review your lease immediately. Consider adding your name to the lease if possible, or consult with a family law attorney about requesting temporary orders that address housing.
How Do I Legally Get My Spouse to Leave the House in Texas?
The only legal way to remove your spouse from the marital home is through a protective order based on family violence. Under Texas Family Code Chapter 85, a judge can issue an order excluding your spouse from the residence if you prove:
Evidence of family violence. You must demonstrate that your spouse committed an act of family violence against you, your children, or another household member.
Recent occurrence. The violent act must have occurred within 30 days of filing your application for a protective order.
Residence requirement. You must have lived in the marital home within the past 30 days.
Likelihood of future violence. The judge must find that your spouse is likely to commit family violence again.
Without allegations of family violence that meet these criteria, Texas courts will not force either spouse to vacate the home before the divorce is finalized.
What Is a Kick-Out Order in Texas?
A kick-out order is a court directive that removes one spouse from the marital home due to family violence concerns. These orders are part of protective order proceedings and require proof of domestic abuse.
Kick-out orders are not automatic. You must file an application, present evidence, and appear at a hearing. The accused spouse has the right to notice and an opportunity to contest the allegations before a kick-out order becomes permanent.
The length of a kick-out order varies. A judge may issue an order lasting 30 days, or the order may remain in effect until the divorce is finalized and the court determines who gets the house. In Tarrant County and throughout North Texas, judges assess each situation individually.
Does a Temporary Restraining Order Force My Spouse to Leave?
No. A standard temporary restraining order (TRO) in a Texas divorce does the opposite. TROs are designed to maintain the status quo while divorce proceedings are pending. This means both spouses typically remain in the home, and neither can change the locks or exclude the other from the residence.
A TRO prevents either party from hiding assets, canceling insurance, harassing each other, or making major financial decisions without court approval. But it does not address who lives where unless family violence is involved.
If you need your spouse removed from the home, you must specifically request that relief through a protective order application, not a standard TRO.
What Is an Ex Parte Protective Order?
An ex parte protective order is an emergency order issued without the other party being present. Under Texas Family Code Chapter 83, a judge can grant this temporary protection if you demonstrate an immediate threat of family violence.
“Ex parte” is Latin for “from one party.” These orders can be granted the same day you file if the judge finds sufficient evidence of danger. Ex parte protective orders typically last 20 days, giving the court time to schedule a full hearing where both parties can present evidence.
Your application must include a sworn affidavit describing the facts and circumstances of the family violence. You must show that your spouse committed violence within the past 30 days and that there’s a continuing threat to your safety.
The responding spouse has the right to file a motion to vacate (cancel) the ex parte order. Once that motion is filed, the court must schedule a hearing as quickly as possible to let both sides be heard.
How Long Does a Protective Order Last in Texas?
Permanent protective orders in Texas generally last up to two years. However, a judge can issue a longer order if:
The respondent committed a felony-level act of family violence, even if never charged or convicted. The respondent caused serious bodily injury to you or a family member. You have obtained two or more previous protective orders against the same person, and the judge found family violence occurred in each case.
After one year, the person subject to the order can file a motion asking the court to discontinue it. If no time period is specified in the order, it automatically expires on the second anniversary of the date it was issued.
To obtain a two-year protective order, you must give the other party notice and an opportunity to appear in court. The judge will hold a full hearing where both sides can present evidence before issuing a longer-term order.
What Happens If Both Spouses File Kick-Out Orders?
When both spouses file competing requests to remove the other from the home, the judge will hold hearings to evaluate both claims. Each party must present their evidence of family violence. The court will then determine which allegations are credible and craft an appropriate order.
In some cases, the judge may deny both requests and allow both spouses to remain in the home with specific conditions. In others, the evidence may clearly support one party’s claims over the other’s. The outcome depends entirely on the facts presented.
Should I Stay in the House During My Texas Divorce?
In most cases, yes. Remaining in the marital home during divorce proceedings can strengthen your position regarding property division and child custody. Here’s why:
Property claims. If you want to keep the house after the divorce, staying demonstrates your commitment to the property. Moving out may suggest to the court that you’re willing to let it go.
Child custody. If you have children and leave them in the home with your spouse, a judge may view this as establishing a custody arrangement. Courts often prefer to maintain stability for children, so the parent who stays with the kids in the family home may have an advantage.
Financial fairness. Continuing to pay for a home you no longer live in while also covering your own housing costs can create significant financial strain. Remaining in the home avoids this double burden.
However, there are exceptions. If your spouse is violent, unstable, or creating a dangerous environment, your safety comes first. Temporarily staying elsewhere for a week while you arrange legal protection will not doom your case. Document why you left, gather evidence of the threat, and file for a protective order immediately.
What Are Temporary Orders in a Texas Divorce?
Temporary orders establish rules for both spouses while the divorce is pending. These court orders address child custody and visitation schedules, child support and spousal support payments, who has exclusive use of the marital home, who pays which bills, and restrictions on selling assets or making major financial changes.
At the temporary orders hearing, both parties appear before a judge who can decide these issues if the spouses cannot agree. This hearing is often the first opportunity for each side to present their case. The decisions made can significantly influence the final divorce decree.
If you and your spouse cannot agree on living arrangements, the temporary orders hearing is where a judge will determine who gets exclusive use of the home during the divorce process.
Frequently Asked Questions
Can I change the locks on my house during a divorce in Texas?
Generally, no. If both spouses have a right to the home, changing the locks to exclude your spouse violates their property rights. Once a standard temporary restraining order is in place, changing locks is specifically prohibited. However, if you obtain a protective order that excludes your spouse from the residence, you may then change the locks to enforce that order.
Will my spouse be notified before a kick-out order takes effect?
For permanent protective orders, yes. Your spouse must receive notice and have an opportunity to appear in court before a kick-out order becomes final. However, for emergency ex parte orders, the court can issue temporary protection without prior notice to address immediate safety concerns. If you fear violence during the notice period, contact law enforcement.
What if I own the house and my spouse doesn’t work?
Ownership and employment status don’t change the analysis. Texas community property law presumes that assets acquired during the marriage belong to both spouses, regardless of who earned the money or whose name is on the title. Your spouse still has a right to remain in the home until a court orders otherwise or the divorce is finalized.
How quickly can I get my spouse out of the house?
If you have evidence of recent family violence, an ex parte protective order can potentially be issued the same day you file. These emergency orders typically last 20 days. A full hearing for a longer-term protective order is usually scheduled within 14 days. Without family violence allegations, you’ll need to wait for a temporary orders hearing, which can take several weeks to schedule.
What evidence do I need for a protective order?
Strong evidence includes photographs of injuries, medical records, police reports, text messages or voicemails containing threats, and witness statements. Video or audio recordings of violent incidents can be particularly compelling. The more documentation you have, the stronger your case will be.
Need Help With Your Divorce in North Texas? Call Us.
Whether you’ve been locked out of your home, need protection from a violent spouse, or want to understand your options for the marital residence during divorce, the Varghese Summersett Family Law Group can help. Our attorneys have handled hundreds of protective order cases and temporary orders hearings throughout Tarrant County, Dallas, and the surrounding areas.
We understand how stressful and frightening these situations can be. Our team will explain your rights, help you gather the evidence you need, and fight to protect you and your children.
Call 817-900-3220 today for a consultation with an experienced family law attorney.
