[Lila]

@Lila, did they have a prenup?[/quote @Satya, that I don't know. Would a pre nup include eviction language? She's not concerned with giving him money to cover whatever he's legally entitled to but she wants him out ASAP. She's mad and just wants him out of her sight.

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[soccermom2three]

Here in California, if she never signed a Quitclaim Deed, the home would be considered community property, so she has every right to stay in the house as he does. He could not evict her.

Even if they weren't getting a divorce but they were selling the home, the title company would require her to either sign the Grant Deed to the Buyer or sign a Quitclaim Deed to be recorded at the close of escrow. Either way she has to relinquish her interest in the property.

 

[phillybeffandswiss]

Please let us know what the lawyer states. You mentioned the house is an inheritance so, I'm curious what that will do. I know he will be given time to leave, but inheritance is always tricky in divorces.

 

[Wolf1974]

As a cop standing is something I deal with a lot. The short answer, least here in Colorado, is no one partner can force another out. Doesn’t matter who owns it if they both claim that at their legal residence. Ultimately if neither partner is willing to leave the divorce process will yield a verdict and often times without a prenup the house will be ordered to be sold and the proceeds divided among the 2 people.

In no marriage arrangements you still can’t force the BF or GF out if they have standing. You would have to go through a legal eviction process to have them removed but hey least you get to keep your house.

Standing is a bit weird here not sure how it is compared to the other areas of the country .

 

[Affaircare]

@Lila,

Florida is an Equitable Distribution state. So unlike a community property state which just takes everything and divides it down the middle no matter who owns it, an equitable distribution state says they divide it "fairly." Thus some property, like inheritances, can be separate property, and marital property is all the stuff and money you earned during the marriage. He gets his separate propert, she gets her separate property, and they take the marital property and spit it 50/50. That's SUPPPOSED to be how it works.

Since the home is an inheritance, in her name only, with no mortgage, she will definitely have a claim to say it is separate property...BUT (and this is a big but) it also sounds like she commingled it while they were married. That is to say, if a separate property is remodeled using joint money, or maintained using joint money, if they used it for vacation or lived in it--then usually they consider some portion of it to be marital property. At minimum he'd be due his half of what marital money was used to maintain the place. Thus she might be due 75% and he'd be due 25% but it sounds to me like he'd have a claim anyway.

Now Florida does not consider abandonment, so either one of them can leave without raising the issue of abandonment. If one or the other were to leave, it might affect "primary care giver" of the children, which might affact child support. However, even if his name is not on the title nor on the deed nor on a mortgage, he has been living there and thus it would be considered his residence at least. I don't see any legal right for her to kick him out.

Thus I would recommend one of two things. Either 1) reach some civil marital agreement about who is going to live where and write it down so that both party's interests are protected--use lawyers to write this and file it. Or 2) go to court and ask the judge for a temporary exclusive rights/use of home order. Essentially this is the judge saying "Okay until we can go to trial, HE will live here, SHE will live there, and they cannot bother each other." Then if he does try to come bother her, she has the law to back her up.

I would NOT recommend trying to evict a spouse. He's not a tenant (unless they have some sort of written lease agreement) and thus it would essentially make her look bad.

 

[Satya]

Please let us know what the lawyer states. You mentioned the house is an inheritance so, I'm curious what that will do. I know he will be given time to leave, but inheritance is always tricky in divorces.

This is why I asked about the prenup. It usually protects inheritances. I was wondering if that would make any difference in procedure to have him vacate the abode.

 

[Lila]

Thank you for all the feedback @Satya, @Wolf1974, @Affaircare, and @soccermom2three. I'll pass it on to her.
@phillybeffandswiss I'll post the outcome as soon as I hear something.

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[phillybeffandswiss]

This is why I asked about the prenup. It usually protects inheritances.

Yes, I know. Still, states vary on what to do with inheritance during or before a marriage. Inheritance is its own bear and in some cases property can be safe even if you are married with no prenup.

I was wondering if that would make any difference in procedure to have him vacate the abode.

According to some websites yes. Either way, the court will be involved inheritance or not. The way I understand it is, if she never added him to the deed it is her home. If he helped with upkeep and renovations she will have to give him a portion of the cost or if the value went up.

https://www.legalmatch.com/law-library/article/evicting-a-spouse-during-separation.html

Community Property Vs. Common Law

Spousal eviction depends on whether a state is a community property or common law state.

In a community property state, property is considered separate or community property. A family home will be considered separate property if the property was:

•Inherited (or purchased using money from an inheritance);
•Owned prior to the marriage; or,
•Given as a gift.

 

[golfer6760]

@Lila,

Florida is an Equitable Distribution state. So unlike a community property state which just takes everything and divides it down the middle no matter who owns it, an equitable distribution state says they divide it "fairly." Thus some property, like inheritances, can be separate property, and marital property is all the stuff and money you earned during the marriage. He gets his separate propert, she gets her separate property, and they take the marital property and spit it 50/50. That's SUPPPOSED to be how it works.

Since the home is an inheritance, in her name only, with no mortgage, she will definitely have a claim to say it is separate property...BUT (and this is a big but) it also sounds like she commingled it while they were married. That is to say, if a separate property is remodeled using joint money, or maintained using joint money, if they used it for vacation or lived in it--then usually they consider some portion of it to be marital property. At minimum he'd be due his half of what marital money was used to maintain the place. Thus she might be due 75% and he'd be due 25% but it sounds to me like he'd have a claim anyway.

Now Florida does not consider abandonment, so either one of them can leave without raising the issue of abandonment. If one or the other were to leave, it might affect "primary care giver" of the children, which might affact child support. However, even if his name is not on the title nor on the deed nor on a mortgage, he has been living there and thus it would be considered his residence at least. I don't see any legal right for her to kick him out.

Thus I would recommend one of two things. Either 1) reach some civil marital agreement about who is going to live where and write it down so that both party's interests are protected--use lawyers to write this and file it. Or 2) go to court and ask the judge for a temporary exclusive rights/use of home order. Essentially this is the judge saying "Okay until we can go to trial, HE will live here, SHE will live there, and they cannot bother each other." Then if he does try to come bother her, she has the law to back her up.

I would NOT recommend trying to evict a spouse. He's not a tenant (unless they have some sort of written lease agreement) and thus it would essentially make her look bad.

Above: 100% correct in the state of FL. ONLY if the house was not put in both names during the marriage. If not, then in the State of FL the property is still yours. The same will go for the other partners property. This law was made years ago to eliminate the "Gold-diggers" and to protect the elderly from losing all their assets.

Guaranteed you should seek council.

 

[EleGirl]

There are two issues.

Who can stay in the home.

Affaircare and some others covered the ownership issue pretty well. Except that in an equitable distribution state, a just can decide to give one person more because it's "equitable". For example if one spouse is disabled and unable to earn an income, they might give that spouse more to include dipping in to the other's inheritance. This is why talking to a lawyer is so important. The lawyer will know the particulars of the state law and what the judge(s) has done in the past in similar cases.


Who owns the home.

The home is her husbands residence. She would have to go through the proper procedures to evict him. in the case of a divorce, that usually means that the judge in that case has to issue an eviction notice. And often times a judge will not do that until the divorce is settled.

 

[Lila]

I heard back from my sister this morning. She doesn't know all of the legal details but it looks like her friend has filed for divorce. She included a special request that he vacate the premises as part of the petition. According to her lawyer, she can't legally evict him, at least not yet, but she can ask. Legally, he can stay there up until the divorce is final. Her options are a temporary exclusive use request or worse case scenario, to sell the property so that everyone has to move out. She's going to wait until he responds to make the final decision.

The problem is that he does not want to divorce and is doing everything in his power to avoid it. She's done. According to my sister, her friend has offered him money as incentive to move out. He won't budge. I have to wonder if he's doing the Divorce Busting thing. What a mess!

 

[badsanta]

Situation: Married couple live in a home purchased/owned by one partner prior to marriage (< 5 years). Homeowner asks for separation and wants SO out of the house. Is that legal? Can the homeowner push the STBX out? Is there anything the homeowner do to speed up the process?

Just curious. Similar situation happening to acquaintances of mine.

@Lila

I have witnessed a similar situation in which the home was actually owned by a business belonging to just one of the spouse's parents. Upon legally separating the spouse that was not named on the deed remained in the house until the divorce was finalized and insisted ownership. The argument was that the spouse remaining in the home had spent all his/her income for many years maintaining and improving the home and therefor he/she had a right to claim ownership in the property via the marriage.

Divorce proceedings had to take into consideration that one spouse (not from the owning family business on the deed) indeed had a financial stake in the property and that this aspect of the home would have to be liquidated in order to settle the divorce. In this case the owning family in order to keep possession of the house paid well over six figures to get the other person out of the home and help settle the divorce.

Don't know if that helps, but it makes for a case study to think about.

Regards,
Badsanta