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Kick Out Orders: Temporary Exclusive Occupancy of the Residence

“Kick out orders”, as most family law attorneys call them, are not necessary in most of divorce and family law matters because one of the parties usually decides to leave the residence and find a place to stay on their own temporary or further basis. That said, there are some people who dig their heels in and refuse to leave, regardless of whatever may be happening. In some cases, you need the court to intervene.

Kick Out Orders: Temporary Exclusive Occupancy of the Residence

In Texas, the general rule is that you may not chose to lock your spouse or significant other out of the marital residence, you need a court order that may only be issued after the other party receives proper legal notice and a judicial hearing. There is an exception, however, in cases of domestic violence where there is a clear and present danger of family violence or the threat thereof.

What is a temporary ex parte protective (kick out) order?

The kick out order may be more accurately described as an order for temporary exclusive occupancy of the residence. Note that this applies to both married couples and non-married individuals living together.

In family violence situations, the court can grant an order giving exclusive possession of the residence to the petitioner on an ex parte basis, meaning that the court can enter the order without giving notice of the hearing to the other party. The theory is that giving notice to an already violent person could lead to harm to another.

To qualify for an ex parte kick out order the party seeking such must prove the following in court under oath and having filed an affidavit establishing the detailed facts, in that:

1. “The applicant requesting the excluding order either resides on the premises or has resided there within 30 days before the date the application was filed;

2. The person to be excluded has within the 30 days before the date the application was filed committed family violence against a member of the household; and

3. There is a clear and present danger that the person to be excluded is likely to commit family violence against a member of the household. “

Will I get to stay in the marital residence during the divorce?

Where there is not a family violence situation, but where there is conflict between the parties as to who will stay in the residence, the court can address a request to be allowed to remain in the residence during the Temporary Orders Hearing at the beginning of the case. Most of the time one of the parties has left the house on a temporary basis and may be staying with family or in a hotel while waiting for the court to rule on who may be awarded exclusive occupancy of the residence, during the pendency of the case.

Being allowed to exclusive possession of the residence during the divorce is not quite a kick out order scenario, unless or until the other party refuses to comply with the court order granting the home to the other party. It may be necessary to ask the court for assistance in enforcing their order.

Note that what is ordered at the Temporary Orders Hearing may become transferred into the final order and judgment in the divorce or family law case and it is important to properly address residential issues and rights at the outset of a divorce.

About Scroggins Law Group: Dallas, Collin and Denton County Board Certified divorce and family law attorney Mark Scroggins, and the team at Scroggins Law Group represent clients in a variety of divorce and family law matters.

At Scroggins Law Group, we have more than 20 years of experience with family law cases in Dallas, Denton and Collin Counties. When you retain our firm, you can trust that your case is in the hands of a highly skilled, dedicated professional. We understand the unique challenges of a high value divorce case, and more importantly, have the knowledge and experience you need on your side. Call us today, (214) 469-3100, to learn more about Texas divorce and family law.

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*Mark L. Scroggins is *board-certified in family law by the Texas Board of Legal Specialization. Unless otherwise noted, other attorneys are not *board-certified.

**Super Lawyers (a Thomson Reuters service, awarded to Mark Scroggins 2014, 2015, 2016, 2017, 2018, 2019, 2020, 2021)

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