[th1]

I am in the process of divorcing my husband of nine years. The marriage has been officially over for over a year. I have asked him numerous times to move out of my apartment and he refuses. I live in subsidized housing in California, and when I moved in I was alone with my two children (because he was nowhere to be found) so I signed the lease, he didn't. I asked the housing case manager to put his name on the unit paperwork so that he would be authorized to stay in the apartment when we decided to work things out. The case manager says that because he is not on the original lease that the unit is mine and I will have to have him evicted. Is this true? Or does the property manager have the right to tell him to leave? And, If I have to evict him, how do I go about doing it? How long does the process take and how much time is he allowed by law to remove himself and his property from my home? Help!

[Fr_Chuck]

The landlord can't evict him, he is not their tenant, he is your guest or tenant, since he estabished residence there. The housing court may or may not rule on it, since this is tied up in a divorce, but you can try, It may happen that the divorce court will have to rule on it.

[th1]

Thank you for the response...

So, what is my next step? What do I do? I haven't been to divorce court, yet. I just filed almost a month ago. Do I have to get the courts involved, or can I just type up a notice stating that I want him gone?

[s_cianci]

I believe your case manager is correct. Generally an eviction requires 30 days' notice. Contact your local sheriff.

[JudyKayTee]

I am in the process of divorcing my husband of nine years. The marriage has been officially over for over a year. I have asked him numerous times to move out of my apartment and he refuses. I live in subsidized housing in California, and when I moved in I was alone with my two children (because he was nowhere to be found) so I signed the lease, he didn't. I asked the housing case manager to put his name on the unit paperwork so that he would be authorized to stay in the apartment when we decided to work things out. The case manager says that because he is not on the original lease that the unit is mine and I will have to have him evicted. Is this true? Or does the property manager have the right to tell him to leave? And, If I have to evict him, how do I go about doing it?? How long does the process take and how much time is he allowed by law to remove himself and his property from my home? Help!!

I don't understand the marriage is officially over part - are you married or not?

Anyway if he is not on the lease the manager cannot evict him. It's up to you. He has to be served with the appropriate notices and the time frame has to run. I find California evictions to be a little complicated - there's an EXCELLENT explanation at California Eviction Notice - How to Evict a Tenant in California - Eviction Service Forms CA (this is posted by a private law firm but it's got great, clear info).

If all else fails your divorce (if you are not already divorced) will address his residency; if you are already divorced it should be covered in your Decree.

[Cvillecpm]

Make his leaving a stipulation in our divorce. Judge will bless and you use that to have him removed or change the locks.

[JudyKayTee]

Make his leaving a stipulation in our divorce. Judge will bless and you use that to have him removed or change the locks.

This must depend on the State - I don't know where you are - because in NYS there are NO stipulations in the Divorce Decree. There is ordered relief and if the other party does not follow the Order you are back in Court but there are no stipulations. The divorce is final when the Decree is filed - no waiting around to see if anyone meets all the stipulations.

What does "Judge will bless" mean?

And, yes, you can use the Divorce Decree (if you are granted sole possession and he will be given a time frame) to evict him - you cannot simply change the locks, at least in NYS.

[th1]

This must depend on the State - I don't know where you are - because in NYS there are NO stipulations in the Divorce Decree. There is ordered relief and if the other party does not follow the Order you are back in Court but there are no stipulations. The divorce is final when the Decree is filed - no waiting around to see if anyone meets all the stipulations.

What does "Judge will bless" mean?

And, yes, you can use the Divorce Decree (if you are granted sole possession and he will be given a time frame) to evict him - you cannot simply change the locks, at least in NYS.

I live in the state of California...

[JudyKayTee]

I live in the state of California...

Did you check out that site that I posted? It pretty much sets it all out - unless after you get the divorce rolling he simply agrees to move out - and we can all cross our fingers for that!

If you have problems with the site, post again and I'll see if I can walk you through. When you're going through a divorce everything seems enormously complicated (I know, I've been there) so if you need help, let me know.

[th1]

I filed for the divorce on the 6th of February. I have been asking him to move since February of last year (2007)... he refuses. I don't know what my rights are. I am kind of confused about how to go about this whole thing, as this is new to me... I just want this to be over!! I can't say that enough! I am starting a new job tomorrow, and don't have time to be in court! I don't want to make any wrong moves on my part because I don't need any extra headaches. Any help will be appreciated! Thank you.

[JudyKayTee]

I filed for the divorce on the 6th of February. I have been asking him to move since February of last year (2007)...he refuses. I don't know what my rights are. I am kind of confused about how to go about this whole thing, as this is new to me...I just want this to be over!!! I can't say that enough! I am starting a new job tomorrow, and don't have time to be in court! I don't want to make any wrong moves on my part because I don't need any extra headaches. Any help will be appreciated! Thank you.

Sure - you give him a 30 day notice. If he doesn't leave then you serve him with the Summons and Complaint. Hopefully by then he will be gone and you don't have to go any farther than that.

(I am going to try cut and paste the form but don't know if it will work. It has to be LEGALLY SERVED on him and either your local Sheriff or your process server will clean up the wording for the Affidavit of Service and further advise you; in the meantime this will get you started)

30-DAY NOTICE TO TERMINATE TENANCY

Plaintiff(s) YOUR NAME
VS.
Tenant(s)
Defendant(s) HIS NAME

TO the above named TENANTS/RESIDENTS AND ALL OTHERS IN POSSESSION.

PLEASE TAKE NOTICE that your month-to-month tenancy of the hereinafter described premises is hereby terminated as of the date thirty (30) days after the service of this NOTICE upon you. YOU ARE HEREBY required to quit and surrender possession thereof to the undersigned on or before the date thirty (30) days after service of this NOTICE upon you.

The Premises of which you are required to surrender possession are: YOUR ADDRESS, APARTMENT NUMBER, TOWN, STATE, ZIP CODE (County of X)


THIS IS INTENDED AS A THIRTY (30) DAY LEGAL NOTICE FOR THE PURPOSE OFTERMININATING YOUR TENANCY. THIS TERMINATION OF TENANCY IS INACCORDANCE WITH CALIFORNIA CIVIL CODE SECTION 789 AND/OR CALIFORNIACIVIL CODE SECTION 1946.

Dated:

Landlord/Agent

PROOF OF SERVICE

I, the undersigned, being at least 18 years of age, declare under penalty of perjury that I served the above notice, of which this is a true copy, on the following tenant(s) in possession in the manner(s) indicated below:


On, after attempting service in both personally manners indicated previously, I posted the notice in a conspicuous place at the residence of the

On , after attempting personal service, tenant(s), AND I deposited a true copy in the U.S.
handed the notice to a person of suitable age and On , I handed the notice to the tenant(s)
Mail, in a sealed envelope with postage fully discretion at the residence/business of the tenant(s),

prepaid, addressed to the tenant(s) at his/her/their AND I deposited a true copy in the U.S. Mail, in a place of residence (date mailed, if different sealed envelope with postage fully prepaid, addressed to the tenant(s) at his/her/their place of residence (date mailed, if different

Executed on
Served by

[th1]

Sure - you give him a 30 day notice. If he doesn't leave then you serve him with the Summons and Complaint. Hopefully by then he will be gone and you don't have to go any farther than that.

(I am going to try cut and paste the form but don't know if it will work. It has to be LEGALLY SERVED on him and either your local Sheriff or your process server will clean up the wording for the Affidavit of Service and further advise you; in the meantime this will get you started)

30-DAY NOTICE TO TERMINATE TENANCY

Plaintiff(s) YOUR NAME
VS.
Tenant(s)
Defendant(s) HIS NAME

TO the above named TENANTS/RESIDENTS AND ALL OTHERS IN POSSESSION.

PLEASE TAKE NOTICE that your month-to-month tenancy of the hereinafter described premises is hereby terminated as of the date thirty (30) days after the service of this NOTICE upon you. YOU ARE HEREBY required to quit and surrender possession thereof to the undersigned on or before the date thirty (30) days after service of this NOTICE upon you.

The Premises of which you are required to surrender possession are: YOUR ADDRESS, APARTMENT NUMBER, TOWN, STATE, ZIP CODE (County of X)


THIS IS INTENDED AS A THIRTY (30) DAY LEGAL NOTICE FOR THE PURPOSE OFTERMININATING YOUR TENANCY. THIS TERMINATION OF TENANCY IS INACCORDANCE WITH CALIFORNIA CIVIL CODE SECTION 789 AND/OR CALIFORNIACIVIL CODE SECTION 1946.

Dated:

Landlord/Agent

PROOF OF SERVICE

I, the undersigned, being at least 18 years of age, declare under penalty of perjury that I served the above notice, of which this is a true copy, on the following tenant(s) in possession in the manner(s) indicated below:


On, after attempting service in both personally manners indicated previously, I posted the notice in a conspicuous place at the residence of the

On , after attempting personal service, tenant(s), AND I deposited a true copy in the U.S.
handed the notice to a person of suitable age and On , I handed the notice to the tenant(s)
Mail, in a sealed envelope with postage fully discretion at the residence/business of the tenant(s),

prepaid, addressed to the tenant(s) at his/her/their AND I deposited a true copy in the U.S. Mail, in a place of residence (date mailed, if different sealed envelope with postage fully prepaid, addressed to the tenant(s) at his/her/their place of residence (date mailed, if different

Executed on
Served by

So do I fill out the proof of service after I attempt to serve him with a notice personally... or what? Do I give him a 30 or 60 day notice? I read that a 60 day notice was in order if he has resided her for more than a year?

[JudyKayTee]

I'm not an Attorney so keep that in mind but I read the Statute as requiring tenants to be given a 30 day notice to terminate - move out for tenants who are month to month. I read the 90 day statute as relating to a government contact (some type of rent-assisted tenancy which does not apply because you personally are the "landlord"). I read the 60 day notice as someone with a lease. To be positively sure, contact Legal Aid or ask your Attorney - or maybe someone in California will respond.

And, no, you cannot serve the papers - another party has to serve, not a party to the action. That person fills out the affidavit of service.

[th1]

OK... thanks!