Welcome to the Ayo & Iken legal roundtable. We tackle the toughest legal issues with down-to-earth commentary you can use from our expert panel of attorneys which spans Florida from Tampa to Orlando and Miami.
In this edition, we will be dealing with what happens when a couple decides they no longer can live together but a divorce may still take some time to complete. Who leaves, who stays while the legal process plays out? As you will see below, there are different takes on what a person should do.
But our experts all agree on one thing: do not do anything rash without thinking matters over thoroughly or consulting an attorney if there are questions in your mind about leaving the home.
We talked about these issues with a legal team gathered for the day.
How long do I have to wait until I can get my husband or wife out of the house?.
It depends if there’s something in writing. It could be a marital agreement or in a lease written by a landlord. Usually there is a reasonable amount of time set out in an agreement for someone to find another place to live. It can also depend on what parties are on a lease or mortgage. For instance, if there is a lease and you both on it, it would be whenever the lease it up. But you should be aware that marital living arrangements do not always follow contract principles.
In Florida, there is no timetable but I find once somebody files for divorce it really changes the dynamics of things whether or not someone was blindsided by the filing. I tell my clients, you never really know someone until you divorce them. You never really know how far someone will go. That’s when you find out whether someone has scruples and can hold their dignity together. And that goes with issues of living in the house if the parties remain living together through a divorce. There is really not much the courts will do to force someone to leave their home unless there is some kind of danger or domestic violence involved. Also, the cops cannot keep some out of their home either, they consider it a civil matter. If there is no domestic violence injunction, it is not likely a judge is going to consider it emergency.
Is there anything you can do to get a spouse out of the home?
Not unless there is a court order. It may be possible to get some temporary relief, such as I once saw a judge give one party exclusive use of the master bedroom. But that is rare, and generally they will not order somebody out of the home unless there is a domestic violence injunction. However, if there is domestic violence, or drug and alcohol issues that are dangerous I have seen judges have someone out that day.
It’s usually done by agreement of the parties. Usually agreements are within 30 days a person will need to find accommodations unless there is a significant event. I recommend if someone plans on moving out that they know the consequences of what they are doing and that makes it easier to find common ground on a move out date. I’ve even seen parties remain in the house together and wait for it to be sold.
What if there is an agreement reached between parties and one side does not live up to parameters set to move out?
I haven’t had too many situations where both parties are still living together once things have gotten that far, but it does happen. You generally have time to make this or that arrangement, but once there is a court order involved you can call law enforcement if a person does not obey the order, whether it is trespassing or a judge can issue a motion to enforce.
You would have to file a motion for enforcement if someone refuses to leave. Usually, I try to begin with a good faith letter first. Then if someone does not comply seek the courts help. But keep in mind, usually the court will not do more than what is in an agreement so a person must be in violation for the court to take action.
What if there’s no agreement and you can’t leave and your spouse refuses to go?
The law says you both have legal right to the home, so you’re going to have to grin and bear it and be roommates. It’s always awkward, difficult. But I tell people unless there is violence, it may not be the most pleasant thing to do but you may have to live together.
What if things get so toxic with my spouse that I feel I have to leave, should I?
I tell people that in some cases it can be considered abandonment. If you leave and take all your stuff the court can say you don’t have an interest in the property or if there is children involved you have given up your custody rights to them. I tell my clients if they do have to leave only take what’s essential. Don’t pack everything you own in the home and just take off.
I do not see abandonment of the home as big as an issue if your name is on the mortgage or property. Vacated residents still can maintain use of the residence until an agreement is reached. But children are another issue. I tell people don’t leave the children behind because it is harder to get them back.
What should you do to protect yourself when you leave?
Always have a witness, videotape or take pictures of what you take and what you leave being. I had a client who was accused of breaking a laptop but he was able to prove the computer was fine when he left by taking time-stamped pictures. Also, if you are moving out, try to move out when you know the other person is not going to be there so things do not escalate into fighting or violence. Out of sight out of mind. There are also companies you can hire to valuate your possessions for insurance purposes, but that can also be used to protect yourself. They will take pictures. They will document everything in your home. Then in a divorce it is an easy index you can use to present to the court to divide between the parties. You are more prepared. Judges do not like just stacks of stuff, but things that are properly indexed.
That is a good point Jennifer. I find the potential for personal items to go “missing” goes drastically up when one spouse leaves the marital home. One spouse always claims the item is still in the home and the other spouse always claims that item was taken by the other person. It comes down to a game of he-said, she-said. Judges do not have a way to break that tie so they often cannot do anything to help.
Always have an agreement in place before you leave about distribution of personal items. Better yet – take whatever you consider to be important.
What if you have left before an agreement is reached?
You have to realize that your personal property is at stake and your spouse can do anything to it. If your wife or husband gets mad and burns your clothes or throws everything on the front lawn it is within their rights. The party who destroys things is wrong and it’s not a good idea, but in these emotional situations, that is what happens. It is usually a civil matter so law enforcement is not going to get involved. So you need to try to take what you feel is yours. I also urge my clients to be courteous. Do not drop by unexpected. Don’t go in the home when someone isn’t home and take things. You would not want someone doing that to you, so when you do it, it does not put the other person in a good mood to settle amicably.
One of the most important issues here is the strategic impact on your case. A person displaced from the marital residence is put off balance and the end effect is to weaken their entire case. So it is vital to read up on this issue beforehand.
You pointed out the most important fact Marti. This issue is incredibly strategic. We are not only talking about a place to live or who gets certain assets. The eventual outcome of custody battles or requests for support can hinge on this. You should come in long before any court case to discuss possible preparation or the long term consequences of of your decisions.
That wraps up today’s roundtable discussion. Be sure to look around our website for more in-depth articles on criminal defense, and protecting your personal rights.. Meanwhile we hope to see you come back to the Ayo and Iken roundtable.
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