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.

Thursday, September 18, 2014

Award of House in a Divorce

I'm getting a divorce next year and my name is not on the deed or mortgage only my husband and my mothers name is on the deed and mortgage. She passed last year but I'm the only one named in the will to receive her 5% of the property. Can I tell the judge that I would like to keep them home in my divorce or does my ex husband automatically gets the home since his name is on it ?? I pay more than half of the mortgage and all of the utilities.

Gina Marie Famularo
 

This is a much more complicated question that it first appears. The first question is whether you have a community property interest in the home. If the house was purchased during marriage, even if you signed a quit-claim deed putting only your husband's name on the house, you may have a community property interest in the house.

If you signed the deed and were a victim of domestic violence and were threatened or coerced into signing over the property, you may be able to set aside the deed. Also, if you signed the deed only for financing purposes and were expecting to have your name put back on the property after the house was purchased, you may have a community property interest.

Secondly, the 5% ownership of your mom's is all yours. Also, was there a down payment on the house? Where did it come from?

You really need to seek the advice of an attorney before it can be determined what your ownership interest is in the house.

Regardless of your ownership interest in the property, you can buy Husband out of his interest in the property if he is agreeable and if you can qualify to refinance the property.          

Friday, September 12, 2014

Custody of teenaged child

I have 50/50 custody of my 16 year old son. I currently pay all of my ex's expenses Rent, food, phone etc. However I can no longer can do that seeing as I just found out that my ex is using drugs and the money I am giving her is not being used to care for him. Do I have to go to court, or can I exercise my right as his father to remove him from her care? I want to care for my son and do not want to support a drug addict.

Since your son is 16 years old, he is what we call an 800 pound gorilla. Do you know the old adage, where does an 800 pound gorilla sleep? Anywhere he wants. So, practically speaking, if your ex is using drugs and your 16 year old doesn't want to go over there any more, he will not be forced to do so, either by the court system or local law enforcement.

The child support is another thing. If you have an order to pay chile support , it is due until paid in full and there is no statute of limitations on collecting the past due money. However, you can discharge your child support by having the child 100% of the time under a case named Marriage of Jackson. This does not help you if you pay support by way of a wage assignment. The only way to get the wage assignment stopped is by going to court. Also, if you want support from your ex, you must go to court for that order.

The long answer is you do not necessarily have to go back to court to obtain custody of your 16 year old child. The short answer is if you want to avoid any potential future problems, keep your son with you, do not send him back to Mom's, and them play it safe and get a court order modifying custody and support.