No Exclusive Use of the Family Home Without a Restraining Order – Family Code 753

One of the first questions in a separation is who stays in the house. Clients often ask the court for “exclusive use and possession” of the family home as a temporary order, expecting it to work like any other request. It does not. Without a domestic violence protective order, California law does not give the court a way to put one spouse out of the home the other spouse lives in.

What Family Code 753 says

California Code Family Code § 753 is short. Notwithstanding California Code Family Code § 752, and except as provided in three articles of the Family Code, neither spouse may be excluded from the other’s dwelling. Each piece of that sentence does work:

• “Notwithstanding Section 752.” California Code Family Code § 752 provides that neither spouse has an interest in the other’s separate property. Section 753 overrides it for one purpose: even where the home is one spouse’s separate property, the other spouse cannot be excluded from it.
• “Except as provided in Article 2 (commencing with Section 2045).” California Code Family Code § 2045 authorizes the court, during a family law proceeding, to issue ex parte orders including a protective order under the Domestic Violence Prevention Act.
• “Article 3 (commencing with Section 2047).” California Code Family Code § 2047 authorizes the same protective orders after notice and a hearing.
• “Article 4 (commencing with Section 2049).” California Code Family Code § 2049 authorizes the court to include a protective order in the judgment.
• “Neither spouse may be excluded from the other’s dwelling.” That is the rule, and the only exceptions are the three just listed, all of which are domestic violence protective orders.

What this means in practice

The three exceptions are the entire list. A request for exclusive use of the community residence that is not a request for a domestic violence restraining order has no statutory basis, and a court that grants one is acting outside the statute. A spouse who wants the other spouse out of the home must proceed under the Domestic Violence Prevention Act, which means showing abuse as that Act defines it and obtaining an order that excludes the other party from the dwelling. The procedure for that order, and the findings the court must make, are the subject of California Code Family Code § 6321.

The flip side matters just as much. A spouse facing a motion for exclusive use that is not accompanied by a restraining order request should say so. The absence of a protective order is a complete answer to the motion, whatever the parties’ living situation.

Hershon Law is aware of no published California decision that contradicts this reading: absent a domestic violence protective order, the court cannot order exclusive possession of a community property residence to one spouse over the other.

Why the rule exists

Excluding a person from his or her home is a serious act, and the Legislature tied it to the one procedure that includes the protections the situation calls for: a sworn showing of abuse, prompt review by a judge, a hearing, and an order of limited duration. Allowing the same result by an ordinary motion, on a showing of mere inconvenience or conflict, would bypass all of that. The statute prevents it.