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 .

 

Chapter 7 Pre-Filing Requirements

Before Filing, You Must:

Stop using your credit cards and don't incur any additional
credit. Once you have decided to file for bankruptcy, you
should not use your credit cards nor incur any additional
credit from that point forward.  Any recent purchases or
recent cash advances can be held still due and owing after
you file for bankruptcy.  The rational is that you never
intended to pay those debts back and is therefore,
tantamount to fraud.  If you're seeking a fresh start, do
your best to insure that you will in fact receive that
fresh start. The credit card issuers are very aware of
attempts to run-up charges on credit cards.  This also
applies to cash advances.  If you take a cash advance too
close to filing bankruptcy, you are likely to see an
objection from the particular credit card issuer.  The
objection comes in the form of an adversarial complaint.
If the creditor is successful in their objection, the
amount of the recent advance(s) will be held due and owing
after your bankruptcy case.

Take the required credit counseling briefing

Before a Chapter 7 bankruptcy case can be filed, you must
take a credit counseling briefing from an approved credit
counseling agency.  This credit counseling briefing can be
done on the internet or on the telephone. The entire
briefing typically takes less than one hour and at the time
of this writing costs approximately $50.00.  The credit
counseling briefing requires that you provide information
as to your monthly income and expenses as well as a listing
of your creditors.  This briefing must be completed within
180 days prior to filing bankruptcy.

File your taxes

You must file your most recent year's taxes to qualify for
Chapter 7 bankruptcy relief.  Although this seems like a
simple requirement, you would be amazed at the number of
individuals who have not filed their most recent taxes.  A
copy of the return will be forwarded to your assigned
bankruptcy trustee after your case is filed.  You must also
provide your most recent tax return to any creditor who
requests it.

Provide your most recent pay advices

You must provide the most recent 60 days worth of paycheck
stubs at the time your case is filed.  These will be
forwarded to your assigned bankruptcy trustee or may be
filed with the Clerk of the U.S. Bankruptcy Court. This
measure is in place to make sure that the amount listed on
the petition for monthly income is in fact accurate.  If
you receive income from a source other than employment,
evidence of that income must be provided just as if is was
a paycheck stub. Once you are aware that you are likely
going to file bankruptcy, keep copies of all of your
paycheck stubs in an organized manner.


----------------------------------------------------
David M. Siegel is the author of Chapter 7 Success: The
Complete Guide to Surviving Personal Bankruptcy. He is a
member of the American Bankruptcy Institute and currently
practices bankruptcy law in Chicago and its surrounding
suburbs. Additional information is available at
http://www.bankruptcy-lawyers-lasvegas.com .

 

Sub-Prime Mortgage Crisis & Chapter 13 Filings

In recent months, the amount of foreclosures filed
throughout the country has more than doubled from the same
time period last year.  The reasons for such high
percentage of filings are numerous.  Primarily, the
sub-prime mortgages have landed in the hands of individuals
who most likely did not qualify for convention financing.
Thus, the interest rates on the loans remain higher than
other conforming loans.  Additionally, many of the
sub-prime loan products involved adjustable rates (ARMS)
which typically re-set within the first few years of the
loans inception.

As sub-prime loans relate to Chapter 13, the typical
scenario is as follows:  The homeowner qualifies for the
loan without a substantial down payment and without
significant income documentation.  The monthly payment is a
stretch for the homeowner; however, it is temporarily
manageable.  Depending upon the type of ARM, the loan may
reset in one, two or three years.  It is at that point in
time that the homeowner may not be able to make the new,
higher mortgage payment.  The homeowner is also unable to
refinance the debt on the property since the type of loan
products needed to accomplish that task no longer exists.
Thus, the homeowner is in quite a tough situation.  The
current real estate market would make it nearly impossible
for the homeowner to sell the property and pay off the
mortgage.  Chapter 13, known as the home saver case, would
not be practicable in the case of adjusting ARMS.

The idea behind Chapter 13 bankruptcy is to allow a
homeowner to catch-up on whatever mortgage arrears have
arisen in addition to making the current mortgage payment
on time.  As rates adjust and loans reset, the homeowner
simply cannot make the current mortgage payment, let alone
a partial payment to catch-up.  The situation is basically
a doomsday for both the homeowner and the mortgage company.
 The homeowner was banking on the ability to make the
payments and/or refinance the outstanding debt at a later
date.  The lack of real estate appreciation has led to the
inability on the part of the homeowner to do just that.

What we are likely to see is a large number of homes on the
market for sale.  Many of the borrowers will file for
Chapter 7 bankruptcy and not Chapter 13 bankruptcy. I
believe that the market will take five to seven years to
begin to show some signs of appreciation.  It will be
interesting to see if Congress amends the bankruptcy code
to allow mortgage debts to be adjusted.  If not
permanently, then for a short time frame of three to five
years.


----------------------------------------------------
David M. Siegel is the author of Chapter 7 Success: The
Complete Guide to Surviving Personal Bankruptcy. He is a
member of the American Bankruptcy Institute and currently
practices bankruptcy law in Chicago and its surrounding
suburbs. Additional information is available at
http://www.chapter7success.com .