Tag: temporary relief

Can I Be Forced to Move Out of My House in a Divorce?

Can I Be Forced to Move Out of My House in a Divorce?

An average divorce case can take between two and six months to resolve.  During that time, there may be a struggle as to who will get to stay in the home.

This was the situation Shahnaz and Sharafat Khan when the wife, Shahnaz kicked Sharafat out of their million dollar home in the Houston, Texas, area.  Mr. Kahn refused to leave the premises leading to the police being called to the home.  Since the home was titled in both Mr. and Mrs. Kahn’s name and there were no allegations of domestic violence, the police could not force Mr. Kahn to leave.  Mr. Kahn then camped out on the lawn of the home in the affluent neighborhood for the next five months. Mrs. Kahn even posted a sign asking neighbors to refrain from feeding her estranged husband. Once Mr. Kahn received a copy of the divorce decree five months later, he finally got in a cab and vacated the premises.

This is an extreme situation, but it highlights a situation that many couples wonder about when considering a divorce in Kentucky. Most of the time, one party decides to voluntarily vacate the property once it becomes clear that the marriage is coming to an end.  This usually provides some much needed distance between the parties and helps reduce the hostilities.

Problems arise when one party simply refuse to leave, but there are options available.  While a divorce is pending, the Court will consider a motion for temporary relief to grant one party temporary exclusive possession of the home.  In deciding whether to grant such a motion, the Court will weigh the options each party have for other accommodations, with which party the children will be staying, the other resources available to each party, and allegations of domestic violence.

Photo from the George Grantham Bain collection at the Library of Congress.

Can I Get Temporary Maintenance While the Divorce is Pending?

Can I Get Temporary Maintenance While the Divorce is Pending?

You have just been served with divorce papers.  You’re world is crumbling down around you.  You have been a stay-at-home parent for years and now you are staring down the likelihood of trying to reenter an unforgiving job market. You feel like someone has just struck a match to your entire world.  How will you be able to support yourself and the children?

We have previously discussed maintenance but we have never really delved into temporary maintenance.  Temporary maintenance is just that, maintenance that is temporarily ordered to be paid while the divorce is pending.  Temporary maintenance is awarded in situations where there is a need by one party and the other party has the ability to pay.

A request for temporary maintenance begins with filing a motion with the court requesting temporary maintenance.  This motion must be accompanied by your last three pay stubs or income information if you are self-employed.  Obviously, if you are unemployed, you can skip this step.  The motion must also include an affidavit detailing your monthly expenses and income and, finally, information about the income of the party from whom maintenance is sought.  This financial affidavit is vital to your success.  Estimating your monthly expenses too low will have you struggling by the end of the month.  If you estimate too high, you will lose credibility with the court.  It is imperative that you work closely with your attorney to develop this affidavit as accurately as possible.  The motion itself, is an opportunity for you to lay out to the court the factual basis for any special relief that you may also be seeking such as service on the marital debt.

Unlike post-judgment maintenance in which the court has to take into consideration the division of marital property and debt before making the determination, the court primarily looks to each party’s income, living arrangements in making a temporary maintenance decision.  The length of the marriage and lifestyle the parties enjoyed during the marriage also come into play.  The fact that a stay-at-home mother can temporary live with family while the divorce is pending may not be persuasive on a judge.  There is an old case in Kentucky in which the Court of Appeals said that a wife should not be reduced to the standing of a “scullery maid” simply because she is getting divorced.

Some things to keep in mind in dealing with temporary maintenance.  The first is that temporary maintenance is not appealable in Kentucky because it is not part of a final order.  Likewise, just because it is ordered (or denied) at a temporary hearing does not necessarily mean that the court will not change its mind at the final hearing.  Therefore, you can either strengthen your case or destroy it in the interim between the temporary hearing and the final hearing.  Finally, the court has broad discretion in whether to award temporary maintenance and whether to continue it as part of the final judgment.

Photo courtesy of torbakhopper

Can I Change the Locks on the House?

Can I Change the Locks on the House?

One question that comes up all the time, especially at the beginning of a divorce case, is “Can I change the locks on my house during the divorce.”  The short answer is yes, but please do not stop reading yet.  As with anything else in a divorce, the answer is actually more complicated than a simple yes or no.

In Kentucky, when the parties are married, unless and until the court says otherwise, they each have equal access and rights to marital property regardless of whether it is titled in the name of the husband, the wife or jointly.  In other words, until a ruling from the court, either party has just as much right to the house as the other.

This means that either spouse has the right to change the locks.  Likewise, either spouse has the right to force his/her way into the house and that should not be arrested for breaking into his/her own home.  (Keep in mind that if the house is damaged during the break-in, the party who did so may be required to pay to repair the damage or otherwise be penalized in the final property division.)  As a practical matter, changing the locks on the residence is a fairly hostile action.  It could escalate an already volatile situation and increase tension between the parties.  Increased tension and hostility usually results in more litigation and more attorney fees.

Normally, one of the first motions that is filed in a divorce case is a motion for temporary relief which usually includes a request for exclusive use and possession of the former marital residence.  Once the court has awarded temporary, exclusive use and possession to one party, the other party may not come into the home without the express permission of the party to whom it was awarded or an order of the court.  At that point, it is not only reasonable to change the locks, you are probably stupid if you do not change them.  If the other spouse enters the home uninvited at that point, he/she could be subject to contempt sanctions or possibly even criminal charges.

In addition to changing the locks on the house, do not forget the other points of access.  Security system codes need to be changed and garage door openers need to be secured or the codes changed.  If you have a security company monitoring your home, you may need to provide them with a copy of the temporary order so they know your estranged spouse is not to be on the premises.

As with anything else in a divorce case, before you act, consult with your divorce and custody attorney before taking any steps that may escalate an already tense situation.

Photo courtesy of Matthias Ripp

Does My Spouse Have a Right to My Medical Records?

Does My Spouse Have a Right to My Medical Records?

If you are involved in a custody case or possibly even a maintenance case, the answer is yes.  Although as a general rule medical records are private, once you put your health at issue, you have effectively waived that privacy right.  Your spouse’s attorney can then force you to produce them through the discovery process or subpoena them directly from your medical provider.  Under Kentucky’s Family Court Rules of Practice and Procedure you can be required to sign an authorization for the release of such information to the opposing attorney.

Your physical, mental and emotional health is always at issue anytime you ask the court to make a determination of child custody.  Moreover, if you are seeking maintenance and claiming that your health in some way inhibits your ability to work and earn a living, then you have made your physical health a factor for the court to consider and essentially given the other side the right to snoop through your medical history.

If this becomes an issue in your case, you should talk to your lawyer about your concerns.  This is not a time to be shy or to keep things from your attorney if there are potentially dangerous or embarrassing things in your medical history.  Your lawyer may be able to file a motion with the court to limit the information that the other side can get or to prevent it from coming in altogether if it is not actually relevant to a case.  If your lawyer knows all of the facts of the situation he can better advise you on how to proceed and protect your interests in court.

Photo courtesy of Seattle Municipal Archives