Evicting an ex-spouse from an apartment, how to evict

I have reasons!

A person who is faced with the problem of evicting a former spouse from their home certainly wonders whether there are enough grounds for this.

In this case, it is necessary to refer to the articles of the Housing Code, which indicate that the grounds for eviction of the former spouse are the recognition of the invalidity of the marriage by the court, or the dissolution of the marriage in the registry office.

But it is worth noting that in this case, the eviction of the spouse takes place only if he is not a co-owner of the property , but only lived in the apartment without ownership rights. But if housing was purchased by both spouses during marriage, then it is already joint property, and it will no longer be so easy to evict a former relative from the apartment.

Eviction methods

It would seem easy to evict an ex-wife or husband from your own apartment. The person should be reminded of his rights and responsibilities and enjoy the spectacle of furiously packing his suitcases. But if all former partners realized the truth and voluntarily left their home after a divorce, then you would not now be looking for the answer to the question of how to drive away an uninvited neighbor. So, there are two ways to evict former spouses from an apartment:

Voluntary. Constructive dialogue and a farewell slam of the door - this is the ideal eviction of an ex-partner. After this, it’s not a sin to throw a party, but there are not many cases of voluntary departure of an ex-husband or wife. All decent and conscientious people run away on their own without talking or reminding. And those who are more insolent do not want to lose their free place of residence and look for a new one. And it’s too expensive to remove a corner these days. Therefore, we want to warn you that you should not hope for such a favorable outcome of events. And whoever is forewarned is forearmed.
Forced. If the ex-husband prefers not to listen to his wife’s monologues about a speedy eviction, and still watches TV casually, scattering sandwich crumbs around, then it’s time to bring in the heavy artillery. Contact the court with a request to forcibly evict the person from your apartment. The ex will receive a couple of reminders from the court, and if he doesn’t get it, gentle bailiffs will come and lead him away.

See also:
Mortgage with your wife’s money: how not to share housing with your husband in case of divorce?

Remember that you can only try to evict your spouse from the apartment if you are its rightful owner. If the housing belongs to both of you, you need to divide the property and decide what to do with the property - sell it and divide it, or you will give the value of your spouse’s share in cash.

What conditions must be met?

If the spouse is not the owner of the corresponding apartment, then upon divorce, he is obliged to independently leave the living space. If the ex-spouse has nowhere to go, then it is worth knowing that the court can enter into his position and postpone the eviction for a certain period.

If this is jointly acquired property , then the court may order the plaintiff to provide other housing for the defendant, after which he will be obliged to evict. (see eviction from the owner’s apartment)

The procedure itself

If the housing was purchased by one of the spouses before marriage, or is an inheritance, then after the divorce, in most cases, this property will be the property of this particular spouse. And according to the Housing Code, after a divorce, the second spouse is obliged to move out due to the loss of the right to use the living space.

Filing a claim to evict a spouse from housing acquired during marriage is possible only after the expiration of a three-year period after the divorce, provided that the defendant has not presented any relevant demands regarding this housing.

Let's draw up an approximate algorithm of actions with the help of which we can achieve our goal, namely, the eviction of the ex-spouse.

Collection of documents

First of all, before going to court, you need to collect all the necessary documents that must be attached to the claim. The package of documents may vary depending on the situation. And for the best result, it is still better to contact a lawyer specializing in such cases at the first stage.

Here is an approximate list of documents:

A copy of the created claim.
A copy of the purchase and sale agreement for the relevant housing (social tenancy agreement).
A document confirming the place of registration.
Technical passport.
A copy of documents confirming family relations with the former spouse (birth certificate of children, document confirming marriage).
A copy of the marriage contract (if one was created).
A copy of the divorce certificate.
Extract from the house register and the Unified State Register.
Receipts for payment of utilities.
Receipt for payment of state duty.

It would also be a good idea to collect additional evidence, which will be presented in court and will help in making the decision we need. This could be testimony, a protocol on the former spouse’s violation of the rules of peaceful cohabitation.

We will pay the state duty

According to the Tax Code of the Russian Federation , the state duty for individuals in case of filing an eviction claim is 200 rubles. Details for paying the fee can be found directly in the relevant court in which you plan to file a claim, or you can look at their website.

Drawing up a statement of claim

The statement of claim being drawn up must be drawn up in accordance with the Civil Procedure Code.

In the header of the application, you must indicate the name of the court to which the application will be filed, the full names of the plaintiff and defendant, as well as their residential address. Next, you should proceed to the main part of the statement of claim, in which you need to describe the current situation and the reason for the disagreement between the two parties.

It is also necessary to indicate the person who is subject to eviction, the residential property from which the eviction should be carried out, information about the owner, as well as the basis for the eviction.

Next, write a request to evict the specified person from the municipal apartment. After this, you must sign and date, and attach the necessary documents prepared in advance to the statement of claim. Next, we submit a statement of claim to the court at the location of the relevant apartment or house. It is worth noting that you can only go to court in this case once.

The sample can be downloaded from here.

Arbitrage practice

The court will analyze your case, and then either accept it for consideration (in this case, a court date will be set), or the application will be left without progress or returned.

The pretext for returning an application , or leaving it without consideration, can only be compelling reasons. Such grounds may include incorrect filing of the claim, lack of certain documents, or incorrect determination of the jurisdiction of the dispute.

Deadlines

When making a decision on the timing of the husband’s eviction from the home, the court is guided by various factors. If the former family member has a sufficient financial situation, or owns other real estate, the court will order the eviction of the spouse as soon as possible (up to seven days).

But sometimes there are situations when a spouse does not have the opportunity to evict from an apartment due to the lack of other housing, or the inability to purchase it (see eviction without the provision of housing).

In this case, the court, as a rule, takes the person’s position and gives him some time to solve housing problems. At this time, he can live in this apartment.

As a rule, this period ranges from approximately 2 months to a year. But, the court may extend this period in the future, depending on the circumstances.

Legal status of the apartment

When evicting a former spouse, the court will first look at the legal status of the property. In the Russian Federation there are the following types of property use:

Private property.
Municipal property.

Each type has its own laws and separate requirements.

Privately owned

Private property is considered to be real estate that was received by individuals into possession by concluding a purchase and sale agreement, by deed of gift, inherited or privatized. Private property can be rented from another individual under a rental agreement.

Having ownership rights to real estate means that the owner can move into the apartment and register any person into it.

To perform such an action, one reason is sufficient - the permission of the owner. But for eviction, a completely different scheme works and cannot be done without compelling reasons. Divorce is considered a serious reason for the ex-spouse to be discharged.

A delay in evicting an ex-husband or wife from his own apartment may occur if he has no other place to live. This reason cannot oblige the owner to forever provide shelter to a stranger, but the court has the right to delay the deportation for three or more months.

All of the above actions cannot be performed if the divorced person has a share in this apartment. Even the owner can be deprived of the right to reside, but this requires other compelling reasons; divorce is not one.

Municipally owned

Municipal property belongs to the state housing stock, not to private individuals. It is provided to citizens in need of housing. Such living space is provided on a rental basis. An open-ended social tenancy agreement is concluded with the tenant, in which there is one responsible tenant. This document contains information about all citizens registered on the territory of the municipal premises. However, unlike private property, all residents of a social apartment have equal rights, and even a responsible tenant is such only on paper, but does not have special privileges or exclusive rights.

Only relatives of the responsible tenant can be registered in a municipal apartment. The spouse is a family member and can be registered in the premises and included in the social tenancy agreement. But if the marriage is dissolved, it will be difficult to evict him; often this will not be possible, since he is considered an equal tenant and cannot be discharged only because of divorce. Even the court will be on the side of the ex-spouse and will refuse the demands.

There are features!

Privatized apartment

Eviction from an apartment that has been privatized will be considered if:

it was acquired by the plaintiff before the marriage;
acquired during the marriage, but the defendant was not registered in it.

According to the law, if the property was privatized by the plaintiff before marriage, or during marriage, but at the same time the defendant was not registered in it, then the apartment will be owned by the person who participated in the privatization.

But, if both spouses took part in privatization , then eviction will be almost impossible. Since this will already be joint property, and it will belong not only to the plaintiff, but also to the defendant. And if at least a small part of this home belongs to the spouse, then it is his personal property, and it is not possible to deprive him of this property.

If the spouse is not the owner, but is only registered in the apartment, then you can evict him due to a long absence. It is quite easy to do this if the ex-spouse is also hiding from paying alimony. In this case, it is necessary to collect the relevant certificates to draw up a report on his absence at the place of residence and file a claim in court to remove him from registration.

If the ex-spouse is registered in the apartment , but does not have ownership rights, and does not want to be evicted, then it is necessary to prepare a claim for eviction in court, preferably with incriminating evidence (antisocial behavior, rowdy behavior, alcoholism, etc.).

The apartment was provided under a social rental agreement

If the former spouse did not move into the relevant apartment, but remained registered in it as a member of the plaintiff’s family (i.e., the tenant), it is necessary to file a lawsuit in court, which will indicate the plaintiff’s request to remove the defendant from the register, as well as recognize the non-acquisition the right to use the living space by the defendant.

And if the spouse moved into the apartment, but does not currently live in it for a long time, then the application must indicate the deregistration of the spouse and the recognition of the loss of the right to use the living space. If the defendant’s departure from the apartment is temporary and short-lived, then obtaining a positive court decision will be very problematic and, in principle, unlikely.

Inherited

The law states that property transferred by inheritance is exclusively the property of the recipient. And in this case, upon termination of the marriage, in accordance with the general rule, the spouse loses the right to use the relevant real estate.

An exception can only be if a marriage contract was concluded, in which other nuances of the outcome of the actions were indicated.

Is it possible to evict an ex-wife and child?

When you are the owner of a home, driving out your ex-wife will not be difficult. But having a common child radically changes things, since the child has the right to a share of the property of either parent. Also, a minor can live in his father’s apartment, even if the parents have already divorced. This circumstance does not give the ex-wife the right to be there, but if the child is too young (under one year old), then, as a rule, the court takes this circumstance into account in favor of the woman. And then the husband cannot kick her out, and sometimes she is not even allowed to divorce.

During the trial, a decision may be made on the temporary residence of the mother in the apartment of her ex-husband along with the child. Within the established time frame, the woman is supposed to find another place of residence and work. If this is not possible, and the father pays child support, he may be required to find housing for his ex-wife and their common child, which is not inferior in terms of conditions to the current one. This is how the law protects the rights of minors.

If the ex-wife, with whom she has a common child, owns some kind of housing or can be sheltered by close relatives, then the court will most likely side with the husband.

It is possible to evict an ex-wife with a small child, but is it worth doing? It is difficult for a single mother to get a job, and finding a place for a child in a nursery is a real problem. Financial problems are also a big obstacle to finding a rented apartment: you can’t really get around on maternity leave. Try to take a responsible attitude towards the fate of your child and take into account all the circumstances of the situation before going to court.

Owned by the other spouse

If all or part of the living space is the property of the ex-spouse, then it will be practically impossible to evict him from there. Not a single court will agree to deprive the defendant of his property. The only exception can be if the spouse has debt obligations; only in this case is it possible to evict for debts.

Let us conclude that it is quite possible to evict a former spouse, unless he is the owner of the relevant living space.

In any case, you should be patient and collect all the necessary documents and evidence so that the court makes a positive decision. And it is still worth contacting a specialist who specializes in such cases in order for the case to have a guaranteed positive outcome.