Legal Question in Civil Litigation in Georgia

My husband and I are legally married. We were separated for 7 years though not legally. I moved back in to live with him on February 1,2013. My name is not on the lease. He keeps threatening me with having me evicted. We are in the state of Georgia. Can he do this?

Asked on 7/03/13, 8:56 am

2 Answers from Attorneys

Robert Gardner Hicks, Massey & Gardner, LLP

A spouse cannot dispossess another spouse from a home in which they have both been living. If a divorce is filed, a judge can order one or the other to leave, but only in the context of a divorce. Otherwise, spouses cannot file civil actions of any kind against one another other than domestic relations actions such as divorces, tpo's, or actions for separate maintenance.. In some cases, a landlord can evict you if you living there is a violation of the lease on the property, but your spouse cannot. Given his threats, it may be time to seek the advice of a divorce attorney.

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Answered on 7/03/13, 11:06 am
Kimberly Coleman Perrell Law, LLC

Yes, he can, although he would not technically be "evicting" you but rather "ejecting" you, as you are not a tenant. If he is the only person on the lease, then you have no contractual relationship with the landlord, and the landlord owes no duties to you. ( Georgia definition of landlord/tenant: "The relationship of landlord and tenant is created when the owner of real estate (i.e. the landlord) grants to another person (i.e. your husband), who accepts such grant, the right simply to possess and enjoy the use of such real estate either for a fixed time or at the will of the grantor.") More importantly, you have no right of possession to the residence.

While the upside of this is that you're not liable to pay any rent to the landlord, you have no right to be on the premises unless your husband gives you the right. The fact that you are married does not change that, especially since your husband signed the lease while you were separated for the seven-year period. All he has to do in order to have you removed from the residence is go to the sheriff of the county where you reside with an affidavit stating that you have no right to be there and are basically trespassing. (See O.C.G.A. 44-11-30, which states "When any person, either by himself, his agent, or his attorney in fact, shall take and subscribe an affidavit in writing before any officer authorized to administer an oath setting forth that he claims, in good faith, the right of possession to the described land or tenement and that such land or tenement is in the hands of another named person who does not in good faith claim a right to such possession and yet refuses to abandon the same, it shall be the duty of the sheriff of the county where the land or tenement is located, upon receiving such affidavit, to exhibit such affidavit to the person described as being in possession of such land or tenement at the earliest possible day and to turn such person out of possession unless the person in possession tenders to the sheriff a counteraffidavit stating that he claims, in good faith, a legal right to the possession of the land or tenement."

Your husband sounds like a real jerk and I'm sorry you have to deal with this. Unfortunately, you really have no legal recourse as far as a right to be there. IF, however, either of the following has occurred, you might have a remedy - if (a) you have paid the rent on his behalf on one or more occasions while you resided there without being reimbursed; or (b) you can argue that he is paying the rent with marital funds (i.e. funds that are not his by virtue of inheritance or some other circumstances that would bar your right to assert a claim in those funds), then you are in better shape. While you cannot stop him from ejecting you if he wants to, you could potentially bring a claim against him for unjust enrichment in order to get the rent money you paid back from him (if (a) has occurred). If (b) is occurred, you should first advise the sheriff of this when/if he comes to eject you from the premises OR advise the landlord of this immediately. If your husband does eject you, I hope you will get a divorce - when you file, you should be able to use the fact that he paid rent with marital funds and ejected you from the residence in your favor.

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Answered on 7/03/13, 11:17 am

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