So, you and your spouse are divorcing? You want your spouse out of the house, because it is titled solely in your name. Your spouse refuses to leave? Can you get your spouse out of the house?
The “legal” answer would appear to be yes. However, there is always a “but” when it comes to questionable legal issues, and this is certainly one of them! Even though the law suggests this will work, you may likely run into a district court judge who says “not so fast, this is a divorce case, and I am not going to tip the balance in anyone’s favor. This just smells.”
Let’s go back to the “yes” answer, and let me give you a very brief primer on why a district court judge should allow you to kick your spouse out of the house. There is a statute passed by the Maryland Legislature called Wrongful Detainer, which means to hold possession of real property without having a legal right of possession.
You start the process by filing a wrongful detainer complaint in the district court where the home is located. When you go to court, the statute actually requires the judge to enter a “judgment for restitution of possession” of the home. Then, the court is required to tell the sheriff to physically throw out your spouse.
If the district court judge says we are not getting involved in a divorce case because the home is marital property, they are likely incorrect, because wrongful detainer-possession of the property-has nothing to do with determining the value of the property in a divorce proceeding.
I have found three potential counter-arguments to this.
First, if there is proper cause, filing a Petition for Relief From Domestic Violence could result in a court order keeping your spouse in the house and lawfully taking you out of the house for up to one year.
Second, if you are already in litigation, the court could enter a “use and possession” order, entitling your spouse to stay in the house and keeping you out of the house. This hearing takes place in the circuit court, while the wrongful detainer action takes place in the district court. I have found that where both are pending in court at the same time, a district court judge will be loathe to act in the wrongful detainer action.
Third, where you are at the end of a divorce case, a divorce judge actually has the ability to change title to the marital home if certain conditions are met, although it is possible that the court could change title yet still keep the other spouse in the house pursuant to use and possession or a protective order.
Let’s take a step back and review the original premise. Filing in the district court for wrongful detainer to get your spouse out of a home that you have sole title to is supposed to work. The district court judge, of course, might be hesitant to follow through with this.
I will leave you with one last thought. If you kick your spouse out of the family home through this method, how do you think the divorce judge is going to feel about you? Can you win the battle but lose the war? It is food for thought.