How Can No One be at Fault?

Though divorce rates in the U.S. have been dropping, it is estimated that close to 50% of marriages will still come to an end. This is below a peak in 1981, but still double the rates held in the ‘50s. In Michigan, there are three ways to deliberately end a marriage: Annulment – This legally [...]

Can a Spouse be Put Out During a Divorce Case?

The short answer is yes. The court can order that one spouse be removed from the marital residence while the other spouse can be granted exclusive possession of the marital residence. In practicality, the process and end result is not nearly that simple.

There first must be on file a verified petition or verified complaint seeking that one spouse be temporarily evicted from the marital residence. The court can order granting exclusive possession to one spouse only in cases where the physical or mental well being of either spouse or their children is jeopardized by the occupancy of both parties. The court will typically only make such a ruling upon due notice to each party and after a full hearing. An exception would be that the court may order exclusive possession upon good cause shown, by way of injunction. However, the former is much more common than the latter. An order for exclusive possession has no effect on the parties’ homestead rights or marital property rights. The order simply places one spouse in the marital residence and temporarily bars the other spouse from being in the property.

The requirements to have such an order entered are stringent. The petitioner must show or demonstrate that the physical or mental well being of either the movant or the children is in jeopardy. A simple threshold would be in the case of physical violence. In re the Marriage of Hofstetter, husband’s admission that he had beaten his wife was sufficient to justify the award of exclusive possession to his wife.

In other cases, the parties are simply living as roommates within the same marital residence. In those instances, the court will not order either party to leave the marital residence. As long as the parties refrain from any type of altercation, each has the right to remain in the premises. In re the Marriage of Lombaer, wife’s hospitalization for mental problems and failure to take prescribed medication were insufficient evidence to establish that the mental or physical well being of the parties or the children would be jeopardized by wife’s presence in the home.

Thus, you can begin to understand the court’s dilemma. Has the petitioner shown the need for exclusive possession of the marital residence? The court must balance the request of the petitioner against the hardship that will be put on the party being removed.

In many cases, both parties seek to remain in the marital residence for economic reasons. Often times, it is not until the divorce is final that the parties break free. There may be significant equity in the property that cannot be divided until the property is sold. It is often in both parties’ interest to remain in the martial residence until that equity can be realized.

In conclusion, the path to obtaining exclusive possession of the marital home is often difficult. However, under the appropriate circumstances and with the assistance of a skilled attorney, a party can be granted exclusive possession of the marital residence.

David M. Siegel is an attorney practicing divorce and family law. Additional information is available at http://www.divorce-lawyers-newyork.com .

What You Should Know About Divorce Law

With the divorce rate at an all time high, it is important to have a full understanding of divorce laws. Nearly 50% of all marriages will end in a divorce. Therefore, it is vital that you know the ins and outs of the laws. Divorce laws do vary from state to state so it is important that you check with the laws for your particular state. However, there are some general laws that apply across the board. If you are looking for an alternative to the more traditional litigation, divorce mediation might be an option. A mediator’s main priority is to try and help the two parties come to a mutual agreement. The neutral third party is there to ensure that both parties are getting a fair deal. A mediator can work with the spouses to work through problems such as child support, custody, visitation, property division, alimony and much more.

Another alternative to the more traditional litigation is collaborative law. For those divorcing couples who wish to avoid litigation but require strong legal representation, they should consider collaborative law. Collaborative law gives you the ability to retain a team of divorce professionals.

Some people believe that one party will receive a majority of the property division. However, it is more likely that the marital assets will be divided fairly evenly for both parties. Therefore, it is vital that both parties create some clear priorities and decide what is really important to them.

Health insurance and taxation are two other important issues when considering a divorce. If your insurance coverage is through your soon to be ex-spouses employer, then it will be important that you continue to have coverage for yourself and any children involved. This can all be worked out through legal litigation. With regards to taxes it is important to determine what dependency exemptions both parties are eligible for.

There are a variety of divorce laws that are set in place for divorcing couples. Divorce is not an easy situation for anyone. However, by knowing and understanding the divorce laws in your particular state, you can ease some of the headache associated with divorce.

Opinions in this article do not necessarily reflect the view of Divorce Law Collin County Texas which the author would like for you to visit.

Collaborative Divorce – Breaking Up Doesn’t Have to Mean Breaking the Bank

The collaborative process, started by Minneapolis family lawyer Stuart Webb in 1990, provides alternative dispute resolution using a team of professionals working jointly for the couple, rather than in adversarial roles. It is just now hitting the radar screen in Illinois, where practitioners estimate that about 300 divorces have been handled this way in the [...]

The Trend Toward A Strict Interpretation of the Cruel Treatment Ground for Divorce in New York

While the rest of the United States has rapidly moved toward no fault divorce, New York’s courts continue to squander valuable resources by requiring litigants and their attorneys to contemplate the minutiae of what constitutes sufficiently egregious marital misconduct under our antiquated fault-based divorce statute. Many years after most states enacted laws that have rendered “fault” increasingly irrelevant to divorce, New York’s courts have subjected claims of cruelty to surprisingly strict scrutiny. Recent decisions suggest that the trend is toward an increasingly strict interpretation of New York’s Domestic Relations Law. As a practical matter, this makes it more difficult to get a divorce.

Domestic Relations Law (DRL) 170(1) provides:

§ 170 Dom. Rel. Action for divorce.
An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds:

(1) The cruel and inhuman treatment of the plaintiff by the defendant
such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.

This Statute requires a party to establish both the specific acts of cruelty perpetrated by the defendant, as well as the effects of that treatment. By forgetting or failing to establish the effects of the defendant’s actions, plaintiffs have failed to satisfy the statute’s requirement that the conduct endangered their well being so severely as to make continued cohabitation “unsafe or improper”. In Hearst v. Hearst, 40 A.D.3d (1st Dept. 2007), the Appellate Division upheld the lower court’s decision that denied the plaintiff-husband’s claim for divorce, observing that the husband had failed to demonstrate that the deterioration of his health was actually caused by the defendant’s conduct.

In contested divorce actions, it is essential for litigants to provide detailed testimony about both the defendant’s conduct, as well as the deleterious effects of that conduct. Until New York’s legislature acts to bring our antiquated divorce laws into the 21st century, divorce litigants and their attorneys are have no alternative than to focus on minutiae surrounding alleged misconduct.

Please feel free to visit our website at http://www.RapaportLaw.com for additional information about divorce law and procedure in New York. Marc Rapaport is a divorce attorney handling contested and uncontested divorce cases throughout New York and New Jersey. He frequently lectures to local bar associations, and he is a frequent commentator on legal matters in the local and national media.

By: Marc A. Rapaport, Esq.

http://www.RapaportLaw.com

How to Get a Divorce in Utah

A judge grants a divorce after your divorce form is submitted to the court, and all required appearances before the judge are completed. In uncontested divorce cases often times you do not even have to physically appear in front of court to get a divorce. In Utah you may file the forms yourself, or obtain a lawyer’s assistance. You could also seek help from Utah’s “Online Court Assistance Program” if you and your spouse have less than six children, and you and your spouse’s combined income has to be under $10,100 per month. FAQ

What is an annulment? When the court declares an annulment, it’s declaring that the couple was never married because the marriage is void under Utah law, or the marriage resulted in fraud. Utah law does not recognize marriages involving incest, where one spouse has a previous undivorced spouse, and where the person performing your ceremony is unauthorized to do so. Generally courts refuse to annul a marriage if children were born during the marriage.

What is legal separation? Legal separation is when the parties live separately, but remains legally married to one another, it’s not a divorce. The couples rights and legal duties to one another are defined in a “Decree of Legal Separation”. A Decree of Legal Separation covers matters such as spousal support, child support, division of property and payment of debts.

Can the same lawyer represent both my spouse and me? No. This is because there is almost always conflict of interest between spouses, which prevents the attorney from properly representing both sides.

How is property divided? Regardless of the income source, Utah laws recognize that both spouses contributed to any property acquired during the time married. Utah requires an “equitable” division of property but not necessarily equal. The division or property usually uses these factors; how long the marriage lasted, the age and health of all parties, their occupations, the amounts and sources of income, and also related issues/matters. It doesn’t matter whose name is on the house, the car, or even boat the courts have the power to divide all property owned by either or both spouses. The judge will consider if the parties divided their property by agreement, and he’ll review it to decide if it’s fair. Just remember the property division cannot be reopened after its final, except under very rare, limited circumstances.

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