Saturday, September 27, 2014

Use of Family Home


Where two parties are living in the same home, the court can only order one of the spouses to leave under limited circumstances. For instance, where there is domestic violence, the court can order the aggressor to immediately vacate the home, even without notice to the other side. Secondly, where the situation is too stressful on the parties or their children to remain living together, if the court finds good cause, the court can order one of the parties to leave after giving that party appropriate notice. Otherwise, unless one party leaves voluntarily, the court will not order one of the parties to leave when they are both living together until time of trial. However, if only one party is living in the home and not paying the mortgage, the court has the power to evict that party before trial.

Award of the Residence

The court will typicall not require a family home to be sold. It will first determine whether the house is community property. If separate property, the court determines that one party owns the home, it will allow that party to buy out the other. If the home is held jointly, the court will allow one party to buy out the other, giving priority to the party who is still living in the residence. If neither party can afford to buy out the other, the house will be ordered sold.

Buying the Residence

In order to be awarded the family residence, one party must buy out the other party's equity in the home. Where both parties are on title, the court will generally require the party who is buying the residence to refinance the property in his or her name only.

How Do I Defend a Domestic Violence Case.

Question:
My ex boyfriend intentionally issued me a TRO, hoping to give me a bad record in background check during employment. I was tricked. He did a lot of extremely bad things to me previously (a lot of controlling behavior, verbal abuse, threatening, cheating, threatening to my parents) to make me have to start a fight. Then he kept all the evidence (that I "harassed" him, "defame" him) and issued a restraining order. I need to prevent this TRO from becoming permanent as this will give me a bad record. However, he left little evidence (when he did bad things and pretended to be a gentleman and a victim). What can I do to make the judge believe in my story?


Answer by Gina Famularo:
If you believe that a temporary restraining order is likely to be issued against you, your best bet is to avoid court altogether. Think about hiring an attorney. The court will usually require both sides to meet and confer before the trial. Often times, a person without an attorney will want to settle once he or she the other person is ready to put on a trial. 

If you do go to trial, you will need to overcome those text messages. Bring witnesses to court. You said your parents had witnessed some of the behavior. Ask them to testify. If your ex has ver thrown things, broken things, gone through your purse, gone through your cell phone, followed you, prevented you from leaving a toon, prevented you from making a phone call, prevented you from sleeping, prented you from leaving the house, took your personal. Items without permission, or followed you room to room, tesify about those things.

Have witness's tesify about those things they have heard the ex say. Try to show that the arguing was mutual. If the exchanges were all verbal, you will have a pretty good shot of overcoming the evidence. It is not against the law to simply call someone names.


If you believe that a temporary restraining order is likely to be issued against you, your best bet is to avoid court altogether. Think about hiring an attorney. The court will usually require both sides to meet and confer before the trial. Often times, a person without an attorney will want to settle once he or she the other person is ready to put on a trial.

If you do go to trial, you will need to overcome those text messages. Bring witnesses to court. You said your parents had witnessed some of the behavior. Ask them to testify. If your ex has ver thrown things, broken things, gone through your purse, gone through your cell phone, followed you, prevented you from leaving a toon, prevented you from making a phone call, prevented you from sleeping, prented you from leaving the house, took your personal. Items without permission, or followed you room to room, tesify about those things.

Have witness's tesify about those things they have heard the ex say. Try to show that the arguing was mutual. If the exchanges were all verbal, you will have a pretty good shot of overcoming the evidence. It is not against the law to simply call someone names.