Can my wife lock me out of my own house?
UPDATED: May 15, 2020
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- If you are an owner of the house, you most likely cannot be barred from entry
- A court order will let one owner keep another from entering the home
- Even if you are allowed to remain in the home, you may be responsible for supporting your spouse living elsewhere
- A court may base the decision of who owns the marital home after a divorce on fairness and the best interest of any children
It's never pleasant when relationships end, but it can be much worse when it comes as a surprise. If you come home to find that your key no longer fits, it can be an awful shock. You may be at a loss about what you can do when your spouse changes the locks, but we can help.
This article will tell you whether or not it's legal for your spouse to lock you out, what you can do about getting access to your home, and what steps you can take going forward to protect yourself through the divorce or separation process.
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The Short Answer: Your Wife Can't Lock You Out (Usually)
Generally, if you're married — even if you're in the process of getting a divorce — your wife or husband can't keep you out of the shared home. As long as you remain married, you both have an equal right to the home you share, also known as the marital home.
As with most things in the law, though, there are some exceptions that we'll get into later. The quick version is that only a court order can keep one spouse from being allowed to enter the marital home.
When Your Wife Can Lock You Out
In some states, if the home was owned by one person before the marriage, they can keep the other person out of the marital home, but even then they may have to pay for their spouse to live elsewhere.
In most states, though, the only way for one spouse to keep another from entering the shared home is through a court order. There are a variety of potential court orders that can be sought that would allow one spouse to lock the other out.
- An order of exclusive occupancy can be issued if the couple is in the process of separation or divorce. Courts know that people in the midst of a divorce may need to be apart and can order that one spouse be granted exclusive occupancy prior to the final divorce order.
- One spouse can get a temporary restraining order against the other. In cases of violence or harassment between partners, a court can order one party to refrain from contact and maintain distance from the other party. Often these orders will include specific places — like the marital home — that the accused abuser isn't allowed to go.
A court will consider a number of factors when determining the appropriate order. In the case of an exclusive occupancy order, the court may rule that the two parties have to live apart. If there are children who would remain in the home, the best interest of the children will be determinative.
For example, if one spouse is the primary caregiver and the children are enrolled in school, a judge will likely order that spouse to remain in the marital home while the other moves elsewhere.
If one person has greater income and provided the majority of the support, the judge might order them to continue to support the other person. If it's in everyone's interest that the couple live apart, that can mean the primary breadwinner having to pay the costs of the other person living separately.
Judges have wide discretion in what can be ordered. Violating a court order has different consequences in different jurisdictions, but usually violating an order can get you arrested. The violation can also result in other charges and have serious consequences for the resolution of your divorce.
What if you aren't actually married?
If you aren't married, it is much more likely that you can be locked out. As we saw, your spouse would need a court order, or, in a few jurisdictions, they would need to own the home prior to the marriage in order to legally bar your entry.
Your rights to entry are diminished when you're not married, though.
You may have the same rights as a married couple if you have a common-law marriage. In order for your common-law marriage to be valid, though, it must be established in a state that allows common-law marriage and it must meet a number of other requirements.
Among the requirements are that you and your significant other act like a married couple. This means calling one another "husband" or "wife" and generally presenting to the public as a married couple. If you don't meet all the requirements, you probably have no more right to enter the home than an unmarried partner.
If you aren't married and haven't established a common-law marriage, there's one other possibility that could keep your significant other from locking you out or prohibiting your entry into the home. If you bought the house together and you're on the deed as a co-owner, you cannot be barred from the house.
Just like a home owned by a married couple, one owner of a co-owned house can't lock the other owner out without a court order. All owners have equal rights to use, enter, and occupy the home.
What if it isn't actually your house?
In most states, property owned before the marriage is not considered marital property. That means that if your spouse owned the home before you married, they own it separate from the marriage. If that doesn't change during the course of the marriage, they will be entitled to keep it after the divorce.
That doesn't mean that a judge can't order the spouse who owns the home to leave; judges have a lot of power and flexibility. It's more likely, however, that if a judge orders anyone to leave the home it will be the spouse with no ownership stake. As mentioned before, though, the homeowner may still be responsible for paying the costs of the other spouse living separately.
Even though an order of exclusive occupancy or a temporary restraining order is likely to happen very early in a potential divorce, the court might consider the ownership status of the home when deciding who to grant occupancy to. Even if the home was owned before the marriage by one person, if the other was added to the deed or was listed on a mortgage on the property, the house may have become joint property.
If the house has become community or joint property through any of these actions, the judge may not defer to the person who owned it before the marriage. How this is treated by the court, however, will vary between jurisdictions and from judge to judge.
When can your wife lock you out?
Your wife can lock you out in a few circumstances, but all of them have one thing in common. All circumstances where you can be barred from a jointly-owned home require a court order.
- A temporary restraining order can keep you from entering the home
- An order of exclusive occupancy can assign one person or the other exclusive right to live in the marital home
- A separation agreement entered into during divorce proceedings can include an order concerning who gets to live in the home
Remember that if your wife or husband owned the home before marriage and it never became marital property, there is a greater chance that they will be able to have you barred.
What You Can and Can't Do About It
We've been talking about being locked out in the context of a separation or divorce, but maybe your wife or husband locked you out under other circumstances.
If your marriage is not ending, it's unlikely that you can be legally kept from entering the home. If, however, your wife or husband is locking you out or taking other extreme actions to keep you from getting into your home, perhaps it's time to consider a separation or divorce.
How can you get into the home when you are locked out?
If you are locked out and the locks have been changed, there are some important things to do and not do in this situation. Even if your spouse has locked you out wrongly, the way you react can create some serious problems.
Don't force your way in. You can be convicted of trespassing even if you own the home if a court finds that you didn't have a possessory interest at the time. That the locks were changed might be evidence that your spouse — and not you — was in exclusive possession.
In addition, forcing the locks or breaking in will likely result in a confrontation. Your spouse may call the police or do something that could harm you, them, or any others present.
How your actions are interpreted by a court will depend on what else happens after you force your way inside, but breaking into the home is obviously not a good way to start.
Instead, whether you're the party staying in the home or not, the better option is to communicate with your spouse. You can work through attorneys or the courts, or decide on a time for the party not in the home to get their belongings.
You can work with the local police or sheriff to arrange a time and to make sure that things go smoothly. After that, it would be best to go through the courts to ensure a fair resolution. As we discussed earlier, you can ask for an order to grant you exclusive use.
A few days or weeks not living at home while the request is pending may not be pleasant, but it's better than risking being arrested and criminally charged.
Who gets the house?
Which spouse is allowed to remain in the house as divorce goes forward may not reflect what ultimately happens with the marital home.
The court will determine what property will be considered marital property. Any property owned before the marriage will be considered non-marital property unless it becomes marital property through some action taken during the marriage. This could be adding your spouse to a deed or mortgage on a property that was owned before marriage.
Another way for property to be non-marital is if it is inherited. Just like with things owned before the wedding, though, the inherited property can be "co-mingled" with marital property and will then be considered marital property as well.
Once the marital property is identified, how it will be divided depends on where you live. States are either community property states or equitable distribution states.
In community property states, all marital property is considered to be owned equally by both spouses. Each spouse is entitled to 50% of the marital or community property.
In equitable distribution states, the court will listen to arguments about what is fair and order the property to be split in the way that is most fair based on the facts and circumstances of the marriage.
In either jurisdiction, though, there are only two possibilities for how the court will decide to address the ownership of the jointly-owned marital home.
- Either the court will order the home sold and the proceeds split in some way between the parties, or
- the court will order ownership transferred to one party, sometimes requiring that person to pay some of the value to their former spouse.
If you're not married, there are a few possibilities for how to decide what to do with the house.
If you happen to have an agreement in place concerning what would happen if either owner decided they wanted to sell the house, that agreement would dictate what happens. In the absence of that agreement, you could reach an agreement of what to do privately — either to sell the house and split the proceeds or for one party to buy out the other.
If an agreement can't be reached privately, either party can file for a partition in court. This action will require the courts to determine the ownership stake in the property for each party. They will then order the sale of the property and distribution of proceeds according to the ownership stake.
Bringing Everything Together
Finding that your relationship has gotten to the point where one spouse is changing the locks on the door of the marital home is awful. The way you react to it can make it even worse.
We've seen that without a court order, you cannot be legally barred from a home that you own. Even knowing that, we've also suggested the best ways to deal with finding that your key no longer fits the lock. Rather than having a confrontation or risking being arrested or charged with trespassing, it's best to rely on the courts or authorities to figure out how to move forward.
If you find yourself in this situation, it's a good idea to consult with an experienced family law attorney. Whether your intention is to reconcile or proceed with a divorce or separation, a skilled attorney can help you understand the nuances of the process in your state.
To find the right attorney to help you navigate the complications of family law, you can begin your search or find more information on a number of legal topics by following this link.