Steven Fernandez |

Divorce Process, Domestic Violence

Domestic violence is a very real issue for many Californians. Domestic violence can often lead to separation, divorce, and the dissolution of a marriage. If you have been the victim of domestic violence, or fear that your spouse may become violent during a divorce, you may be able to seek protection from the state.

California allows spouses to petition a court for protective orders during divorce proceedings. These orders can help to reduce the possibility of domestic violence. When you are living with your spouse and fear that they may harm you or your children, the court can issue what is known as a kick out order.

What is a Kick Out Order?

Kick out orders are basically a way to legally kick someone out of his or her home for a certain period of time. These restraining orders are used as a form of protection against established or threatened domestic violence issues.

Kick out orders can be very helpful when a victim of domestic violence wants to formally divorce his or her abuser. Because they live together, it can be difficult for a victim of domestic violence to gather the strength to tell his or her abuser that they want a divorce. However, when the abuser is removed from that family home, it can be easier to

  1. Petition for a divorce, and
  2. Feel safe and free from retribution during the process.

How Can a Victim of Abuse Get a Kick Out Order?

Kick out requests are a type of restraining order. They can be issued on an emergency basis. However, a victim must be able to establish three (3) things in order to get a kick out order from a Los Angeles Court. Family Code Section 6321 permits a court to issue a kick-out order if:

  1. The victim can show that they have a legal right to possess the residence in question;
  2. The person that the victim is trying to kick out of the home has assaulted or threatened to assault the victim and/or children; and
  3. The victim and/or children would suffer physical or emotional harm if that person is not excluded from the home.

A court will have the discretion to determine if these elements are satisfied. The most difficult element to establish is generally that you (the victim) has the legal right to possess the residence in question. This can be established by showing that your name is on a lease or mortgage, that you pay rent to a landlord, or that you have a long-standing physical presence in that location.

It is becoming more and more common for both a husband and wife to be named on a lease and/or mortgage. However, this is not always the case. If a victim’s name is not on rental or mortgage documents, a court may still find that he or she has a legal right to the property if it was shared by the spouses/partners as a primary home.

Each County in California may require different evidence to establish that a kick-out order is necessary. Some require that there is a showing of “immediate and serious harm.” Others leave discretion to the judges hearing each individual case.

No matter the case, it is important to provide evidence that there is a serious threat of domestic violence and harm. A false or unnecessary request for a kick-out order can do more harm than good in a family law matter.

What Happens if a Kick Out Order is Granted?

When a kick-out order is granted, the abusive spouse will be required to leave the family home. This temporary order will suspend any legal right(s) the abusive spouse has to the residence. So, even if the abuser is named as the tenant or leaseholder, the kick out order will require that he or she leave the property. The spouse named in the kick out order will be required to stay away from the premises for a specified period of time or until the family law matter has been resolved.

What If a Kick Out Order is Not Granted?

Kick out orders are not always granted. A victim may lack the evidence that is necessary to establish his or her case. This does not mean that they cannot seek protection from a restraining order. Victims of abuse can also request a non-emergency removal order.

Family Code Section 6340 allows a court to issue a removal order if it finds that “physical or emotional harm would otherwise result to the other party, to a person under the care, custody, and control of the other party, or to a minor child of the parties or of the other party.” So, a removal order can be issued if the victim or children would be likely to suffer harm if the abuser was not removed from the home.

The difference between a kick out order and a removal order is the urgency of the situation. Kick out orders can be issued without hearing from the alleged abuser. Removal orders, on the other hand, allow the alleged abuser (or subject of the removal order) to present his or her side of the story.

Kick out orders are granted in times of emergency. Removal orders are not issued in times of emergency. Both types of temporary restraining orders are issued to protect against the likely infliction of physical and/or emotional harm.

Getting a Temporary Restraining Order During Your Divorce

If you are getting a divorce and fear for your safety you may be able to get a temporary restraining order to remove your spouse from your shared home. The type of restraining order that will be issued will depend on the evidence you can provide and the type of threat that is involved.

Hiring an experienced Los Angeles family law attorney to handle your case is the best way to get the protection you need. Contact our office today for more information on kick out and removal orders. We can help you protect yourself and your family during your divorce.